McGautha v California Opinion

    Farrakhan v. Gregoire 
0848-001

9th Circuit Rehearing En Banc

BRIEFS OF 
AMICI CURIAE



Farrakhan v. Gregoire 
0848-001

9th Circuit Rehearing En Banc

BRIEFS FILED BY AMICI CURIAE 

Briefs Filed in Support of Plaintiffs -  Appellants

Amici Curiae Tab

ACLU of Washington & ACLU 1

Brennan Center for Justice at NYU 2

Community Service Society 3

Constitutional Accountability Center 4

Leading Criminologists 5

Law Professors 6

Lawyers’ Committee for Civil Rights, Equal Justice Society, Legal Services 
for Prisoners with Children, and American Parole & Probation Association

7

National Black Police Association. National Latino Officers Association. 
American Probation & Parole Association, and Former Law Enforcement 
Officials

8

Briefs Filed in Support of Defendants-Appellees

A mici Curine Tab

Pacific Legal Foundation and Center for Equal Opportunity 9

iOOOI7320.DOC!



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No. 06-35669

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MUHAMMAD SHABAZZ FARRAKHAN, et al„
Plaintiffs-Appellants, 

v.

CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF
WASHINGTON, et al.,

Defendants-A ppellees.

On Appeal from a Judgment of the United States District Court 
for the Eastern District of Washington, No. CV-96-076-RHW, 

The Honorable Judge Robert H. Whaley Presiding

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION OF 
WASHINGTON AND AMERICAN CIVIL LIBERTIES UNION IN 

SUPPORT OF PLAINTIFFS/APPELLANTS

Sarah A. Dunne 
Nancy Talner
American Civil Liberties Union 
of Washington Foundation 
901 Fifth Ave., Suite 630 
Seattle, WA 98164 
Phone: (206)624-2184

Peter A. Danelo 
2021 First Avenue, Apt. C14 
Seattle, WA 98121 
Phone: (206)441-4735

Leonard ,1. Feldman 
P.K. Runkles-Pearson 
Daniel A. Swedlow 
Stoel Rives LLP
600 University Street, Suite 3600 
Seattle, WA 98101 
Phone: (206) 624-0900

Laughlin McDonald
Nancy G. Abudu
ACLU Voting Rights Project
230 Peachtree St. NW, Suite 1440
Atlanta, GA 30303
Phone: (404) 523-2721

ATTORNEYS FOR AMICI CURIAE

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TABLE OF CONTENTS

IDENTITY AND INTEREST OF AMICI CURIAE................................................ 1

ISSUES ADDRESSED BY AMICI.......................................................................... 2

RELEVANT FACTS................................................................................................. 2

ARGUMENT..............................................................................................................5

A. The Panel Dissent Is Factually Flawed As To The Category Of 
Persons Affected By The 2009 Amendment To Washington’s 
Voting Rights Law (FIB 1517). Even With The Amendment, 
Plaintiffs And 43,000 People (Including 27,000 On Community 
Custody Overlooked By The Dissent) Are Still Denied The
Right To Vote.........................................................................................5

B. The Passage Of IIB 1517 Does Not Alter The Legal Analysis 
Applicable To The Evidence Of The VRA Vote-Denial
Violation In This Case........................................................................... 7

C. Remand Is The Appropriate Remedy If The Court Believes The
Effect Of HB 1517 Is Relevant To The VRA Analysis..................... 11

CONCLUSION.........................................................................................................13

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TABLE OF AUTHORITIES

C ases
Page(s)

Allen v. State Bd. o f Elections,
393 U.S. 544 (1969).........................................................................

Blackmoon v. Charles Mix Cnty.,
505 F. Supp. 2d 585 (D.S.D. 2007)..........................................................

Coronado v. Brewer,
No. 08-17567, 2010 U.S. App. LEXIS 10822 (9th Cir. May 27, 2010)...,

Farrakhan v. Gregoire (Farrakhan II),
590 F.3d 989, rehearing en banc granted, 603 F.3d 1072 
(9th Cir. 2010)...............................................................................

Farrakhan v. Washington (Farrakhan I),
338 F.3d 1009 (9th Cir. 2003)...................................................................

Farrakhan v. Gregoire,
No. CV-96-76-RIIW, 2006 U.S. Dist. LEXIS 45987 (E.D. Wash luly 7 
2006)...............................................................................

10

10

..8

..passim 

4, 9, 10

.....3,4
Gomez v. City o f Watsonville,

863 F.2d 1407 (9th Cir. 1988)..................................................................

Harvey v. Brewer,
No. 08-17253, 2010 U.S. App. LEXIS 10822 (9th Cir. May 27, 2010)...

Jan is v. Nelson,
No. CR 09-5019-KES, 2009 U.S. Dist. LEXIS 109569 (D S D Nov ^4 
2009)......................................................................................

Levyv. Lexington Cnty., S.C.,
589 F.3d 708 (4th Cir. 2009)..................................................................

Aw. Austin Mun. Util. Dist. No. One v. Holder,
129 S. Ct. 2504 (2009)...............................

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Ricci v. DeStefano,
129 S. Ct. 2658 (2009)..........................................................................................7

Ruiz v. City o f Santa Maria,
160 F.3d 543 (9th Cir. 1998)..............................................................................10

South Carolina v. Katzenbach,
383 U.S. 301 (1966).............................................................................................13

Stewart v. Blackwell,
444 F.3d 843 (2006), vacated for mootness, 473 F.3d 692 (6th Cir. 2007)...9, 12 

United States v. Blaine Cnty., Mont.,
363 F.3d 897 (9th Cir. 2004)................................................................................8

W. Oil & Gas Ass 'n v. Sonoma Cnty.,
905 F.2d 1287 (9th Cir. 1990)..............................................................................9

Worth v. Seldin,
422 U.S. 490 (1975).............................................................................................10

Statutes

42 U.S.C. § 1973a................................................................................................... 10

Voting Rights Act of 1965, 42 U.S.C. § 1973 (the “VRA”) ........................... passim

Wash. Rev. Code § 29A.08.520(1), (7)..................................................................... 6

Wash. Sess. Laws 2009, eh. 325, H.B. 1517, § 1 (“FIB 1517”) .......................passim

O ther  A uthorities

Daniel P. Tokaji, The New Vote Denial: Where Election Reform Meets the
Voting Rights Act, 57 S.C. L. Rev. 689, 691,718 (2006)................................... 8

Washington State Sentencing Guidelines Commission, Disproportionality
and Disparity in Adult Felony Sentencing (2003)............................................... 4

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IDENTITY AND INTEREST OF AMICI CURIAE

This brief is submitted by two amici: the American Civil Liberties Union 

(“ACLU”) and the American Civil Liberties Union of Washington (“ACLU of 

Washington”). Both amici are uniquely able to provide additional analysis 

regarding the issues presented on en banc review. The parties to this proceeding 

have consented to the filing of this amici brief, and amici ask that the En Banc 

Panel consider this brief.

Amicus ACLU of Washington is a statewide, nonprofit, nonpartisan 

organization with over 20,000 members dedicated to the preservation of civil 

liberties and civil rights. For the past 10 years, the ACLU of Washington has 

worked to change Washington's felon disenfranchisement law and restore the 

voting rights of convicted felons. The ACLU of Washington first proposed 

legislation in 2001 to restore the voting rights of persons with felony convictions 

more quickly and through a less burdensome process. In 2009, those efforts came 

to fruition when the Washington legislature passed H.B. 1517 (2009 Wash. Sess. 

Laws, eh. 325, § 1) (“HB 1517”). Subsequent to passage of HB 1517, the ACLU 

of Washington has worked to educate the public about the amended law. That law 

-  discussed at length below -  is central to this case because Defendants 

erroneously claim that passage of the law mooted Plaintiffs’ claims.

Amicus ACLU is a nationwide, nonprofit, nonpartisan organization with 

over 500,000 members dedicated to the principles of liberty and equality embodied 

in the Constitution and our nation’s civil rights laws. Since 1966, the ACLU’s 

Voting Rights Project has defended the voting rights of minorities and advocated

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on behalf of individuals with felony convietions who seek the right to vote. The 

ACLU has participated in numerous cases involving interpretation of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973 (the “VRA”), including a recent Supreme 

Court case (Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 

(2009)), and several other cases addressing the application of the VRA to felon 

disenfranchisement. Like the ACLU of Washington, the ACLU is uniquely 

positioned to address the issues currently before the Court on en banc review.

For convenience and ease of reference, the remainder of this amici brief will 

refer to the ACLU of Washington and the ACLU collectively as the "‘ACLU.”

ISSUES ADDRESSED BY AMICI

1. Did Washington’s passage of FIB 1517, provisionally restoring voting 

rights only to felons not on Department of Corrections (“DOC”) supervision or in 

DOC physical custody, leaving approximately 43,000 people still disenfranchised 

by Washington’s felon disenfranchisement law, render Plaintiffs’ VRA vote-denial 

claim moot?

2. If the En Bane Panel believes the passage of HB 1517 alters the 

analysis of the VRA violation in this case, is the appropriate remedy remand, 

because the relevant evidence is not in the current record, rather than a grant of 

summary judgment for the State?

RELEVANT FACTS

“Plaintiffs, minority citizens of Washington state who have lost their right to 

vote pursuant to the state's felon disenfranchisement provision, filed this action in 

1996 challenging that provision on the ground that, due to racial discrimination in

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the state's criminal justice system, the automatic disenfranchisement of felons 

results in the denial of the right to vote on account of race, in violation of § 2 of the 

Voting Rights Act (“VRA”), 42 U.S.C. § 1973.” Farrakhan v. Gregoire 

(Farrakhan II), 590 F.3d 989, 993, rehearing en banc granted, 603 F.3d 1072 (9th 

Cir. 2010). It is this challenge to the loss of the right to vote that results from a 

felony conviction that is currently at issue in this case. For the reasons explained 

below, Plaintiffs’ claim remains valid even after the 2009 passage of FIB 1517, 

which provisionally restores voting rights to persons no longer in DOC physical 

custody or on DOC community custody.1

In 2006, following extensive discovery and presentation of evidence by both 

parties in cross-motions for summary judgment, the district court ruled that 

Plaintiffs had presented “compelling” evidence that racial disparities exist at every 

stage of Washington’s criminal justice system. Farrakhan v. Gregoire, No. CV- 

96-76-RHW, 2006 U.S. Dist. LEXIS 45987, at *17 (E.D. Wash. July 7, 2006); 

Farrakhan II, 590 F.3d at 994-95, 1004. Plaintiffs' evidence showed disparities 

with respect to searches, charging, bail, length ot confinement (African-Americans 

spend approximately half a day more for each day a white defendant is 

recommended to be confined to prison and are 75% less likely than whites to be 

recommended for an alternative sentence) and incarceration (African-Americans 

are nine times more likely to be imprisoned than whites). Brief of 

Plaintiffs/Appellants filed Dec. 1, 2006 at 9-12; ER 179-255, 258-74. As the 1

1 “Community custody” refers to individuals who are on parole or supervised 
release, not to individuals who are currently incarcerated.

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State’s own sentencing commission found, “[p jeople of color are over-represented 

at every stage of Washington’s criminal justice system, from arrest through 

sentencing and incarceration.” Washington State Sentencing Guidelines 

Commission, Disproportionality and Disparity in Adult Felony Sentencing (2003) 

(contained in the record at ER 498). Indeed, for every year between 1996 and 

2005, 19% to 22.9% of the incarcerated population in Washington State was 

African-American, even though African-Americans comprise only 3% of the 

general population. Id. Native Americans, who constitute only 2% of the State 

population, represent nearly 4% of the prison population. Id. Collectively, though 

African-Americans, Latinos and Native Americans constitute only 12% of 

Washington State’s general population, they represent an incredible 36% of the 

State’s prison population. Id.

Based on this evidence, the district court concluded that it “ha|d] no doubt 

that members of racial minorities have experienced discrimination in Washington’s 

criminal justice system,” 2006 U.S. Dist. LEXIS 45987, at *28, and that such 

discrimination '‘clearly hinderjs] the ability of racial minorities to participate 

effectively in the political process,” Farrakhan v. Washington (Farrakhan /), 338 

F.3d 1009, 1020 (9th Cir. 2003). Plaintiffs’ evidence consisted of far more than 

“mere statistics”; it demonstrated the causal connection among voting 

qualification, the interaction with social and historical conditions, and vote denial 

on the basis of race. The district court ruled that the evidence demonstrated that 

these disparities could not be explained in a race-neutral way and instead were the 

product of race discrimination. The State did not dispute these factual rulings.

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In 2009, while this case was awaiting decision on appeal for the second time, 

the Washington legislature passed HB 1517, provisionally restoring voting rights 

to felons who complete both their prison terms and their terms of community 

custody. HB 1517 did not change the fact that felons in Washington still 

automatically lose the right to vote upon conviction, and at the present time 

approximately 43,000 felons remain disenfranchised. The State has not presented 

evidence of the number of persons whose right to vote has been restored by HB 

1517, nor has it shown that the racial disparity shown by the record below has been 

eliminated or even reduced. Likewise, because five of the six Plaintiffs in this case 

remain in prison serving lengthy terms, they will not have their voting rights 

restored under HB 1517 any time soon.

ARGUMENT

A, The Panel Dissent Is Factually Flawed As To The Category Of Persons 
Affected By The 2009 Amendment To Washington’s Voting Rights Law 
(HB 1517). Even With The Amendment, Plaintiffs And 43,000 People 
(Including 27,000 On Community Custody Overlooked By The Dissent) 
Are Still Denied The Right To Vote.

At the time the district court issued the summary judgment ruling at issue in 

this appeal, the Washington felon disfranchisement statute provided that convicted 

felons could not regain the right to vote until they had completed all of the 

requirements of their criminal sentences. Supplemental Brief of Defendants filed 

May 29, 2009 at 1-2. In 2009, Washington amended the statute to provide that 

“the right to vote is provisionally restored” upon release from physical custody and 

from “supervision” by the DOC. HB 1517, § 1. HB 1517 does not restore voting

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rights for the thousands of individuals who are either in DOC’s physical custody or 

on DOC “community custody” and therefore remain under the authority of the 

DOC. Id. DOC has approximately 16,000 inmates in physical custody and 27,000 

active community custody cases. See Washington Department of Corrections, 

http://www.doc.wa.gov/aboutdoc/prisons.asp and

http://www.doc.wa.gov/aboutdoc/communitycorreetions.asp (last visited June 8, 

2010). Therefore, 43,000 individuals remain ineligible to vote even after the 

passage of HB 1517. Wash. Rev. Code § 29A.08.520( 1), (7) (“|T]he right to vote 

is provisionally restored as long as the person is not under the authority of the 

department of corrections. ... For the purposes of this section, a person is under the 

authority of the department of corrections if the person is: (a) Serving a sentence 

of confinement in the custody of the department of corrections; or (b) Subject to 

community custody as defined in RCW 9.94A.030.”).

The Panel Dissent suggests repeatedly, without supporting evidence, that HB 

1517 changed “the landscape of this case,” requiring remand to the district court, 

because only the voting rights of incarcerated felons are now in issue.

Farrakhan //, 590 F.3d at 1016, 1018. Even the State acknowledges that is 

incorrect. Supplemental Brief of Defendants filed May 29, 2009 at 2, 10. 

Moreover, the Panel Dissent's analysis rests on crucial factual errors. The Panel 

Dissent materially misstates the effect of HB 1517, asserting that “we are left to 

consider the Voting Rights Act challenge of only those felons still serving their 

prison terms. Interestingly, the case up to this point has never contemplated the 

two distinct sets of felons affected by the prior Washington law—those still

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incarcerated and those already released.5' Farrakhan II, 590 F.3d at 1017. That is 

incorrect because it ignores the 27,000 individuals who remain on DOC 

community custody and whose voting rights, in addition to those of all persons in 

DOC physical custody, are therefore not restored by the amended law.

The State has not come forward with any evidence that the racial disparities 

demonstrated in the record have changed in any way legally relevant to this case. 

Instead it speculates that HB 1517 disproportionally benefitted minority voters, 

without offering any supporting evidence for that assertion. Supplemental Brief of 

Defendants filed May 29, 2009. It is more likely HB 1517 made the race-based 

disparities worse because the evidence in the record shows that African-Americans 

disproportionally suffer longer sentences of confinement than whites. The lack of 

evidence supporting the State’s claims about the effect of HB 1517 justifies 

awarding summary judgment to Plaintiffs. Ricci v. DeStefano, 129 S. Ct. 2658, 

2681 (2009) (Court granted summary judgment to petitioners because “there [was] 

no evidence—let alone the required strong basis in evidence” to support 

respondent’s position).

B. The Passage Of HB 1517 Does Not Alter The Legal Analysis Applicable
To The Evidence Of The VRA Vote-Denial Violation In This Case.

‘“ Vote denial5 refers to practices that prevent people from voting or having 

their votes counted. ... Vote denial cases are different from vote dilution cases.

The most obvious difference is that next-generation vote denial cases, like first- 

generation vote denial cases, mainly implicate the value of participation; by 

contrast, second-generation cases involving vote dilution mainly implicate the

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value of aggregation.” Daniel P. Tokaji, The New Vote Denial: Where Election 

Reform Meets the Voting Rights Act, 57 S.C. L. Rev. 689, 691,718 (2006).

The passage of HB 1517 does not alter the conclusion that, under the totality

of the circumstances, Washington's disfranchisement statute violates the VRA.

The claim in this lawsuit involves denial of the right to vote upon conviction,2 not

the system for restoring voting rights at some later point:

[N|o matter how well the amended law functions to 
restore at an earlier time the voting rights of felons who 
have emerged from incarceration, it does not protect 
minorities from being denied the right to vote upon 
conviction by a criminal justice system that Plaintiffs 
have demonstrated is materially tainted by discrimination 
and bias. Accordingly, it does not alter our analysis as to 
Senate Factor 5 or as to the totality of the circumstances.

Farrakhan II, 590 F.3d at 1016. Both logically and legally, the Panel Majority's

analysis is correct.

It is well-established that strong evidence of one Senate Factor can establish 

a VRA vote-denial claim; it is a totality-of-the-eircumstanees test and not the 

“mechanistic application of the Senate factors that the Senate report emphatically 

rejects.” United States v. Blaine Cnty., Mont., 363 F.3d 897, 903, 913 (9th Cir. 

2004) (upholding district court's ruling that VRA Section 2 violation was

T his Court's recent rulings in Harvey v. Brewer and Coronado v. Brewer, Nos. 
08-17253, 08-17567, 2010 U.S. App. LEXIS 10822 (9th Cir. May 27, 2010), are 
therefore distinguishable. The Hcnwey and Coronado cases involved constitutional 
challenges to Arizona’s felon disenfranchisement law, not the VRA violation 
alleged here, and the Coronado case also involved challenges to Arizona’s laws on 
restoring the right to vote. Neither issue is currently part of this case.

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established and citing Supreme Court precedent, noting that “there is no 

requirement that a particular number of factors be proved, or that a majority of 

them point one way or the other” (internal quotation marks and citation omitted)). 

See also Senate Report No. 97-417, confirming that “Congress did not intend this 

list [of the nine Senate Factors] to be comprehensive or exclusive, nor did it intend 

that ‘any particular number of factors be proved, or that a majority of them point 

one way or the other.’” Farrakhan /, 338 F.3d at 1015 (quoting S. Rep. No. 97- 

417, at 29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 207). In Gomez v. City o f 

Watsonville, 863 F.2d 1407 (9th Cir. 1988), the Court similarly recognized that the 

Senate Factors are “not a mandatory . . . test” but are only “meant as a guide to 

illustrate some of the variables that should be considered by the court.” Id. at 

1412. Thus, “the range of factors that [are] relevant in any given case will vary 

depending upon the nature of the claim and the facts of the case.” Id. The Senate 

Report on the 1982 amendments to the VRA provides further support for this 

analysis.

Also, because five of the six Plaintiffs remain incarcerated and have not had 

their rights to vote restored by HB 1517, it is clear that their claims are not moot. 

See W. Oil & Gas Ass'n v. Sonoma Cnty., 905 F.2d 1287, 1290 (9th Cir. 1990) 

(“[W]hen the possibility of controversy remains, the case is not yet moot.”). A 

VRA vote-denial case is moot when the government completely ceases using the 

challenged practice, as occurred when Ohio chose to stop using challenged punch 

card ballots. Stewart v. Blackwell, 444 F.3d 843 (2006), vacated for mootness, 473 

F.3d 692 (6th Cir. 2007). But the State here has not ceased disenfranchising

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felons; as noted above, 43,000 remain disenfranchised. See also Blackmoon v. 

Charles Mix Cnty., 505 F. Supp. 2d 585, 593 (D.S.D. 2007) (rejecting mootness 

claim when districts challenged in vote dilution case had changed while lawsuit 

was pending but change did not automatically preclude VRA remedy); Ruiz v. City 

o f Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998) (ruling that Hispanic residents’ 

Section 2 VRA challenge against city’s at-large system of elections was not moot 

despite election of two Hispanies to city council while lawsuit was pending).

Furthermore, since most of the named Plaintiffs in this case remain in the 

physical custody of DOC, they retain standing to assert the VRA violation at issue 

here. 42 U.S.C. § 1973a (aggrieved voters have standing to bring VRA claims); 

Warth v. Seldin, 422 U.S. 490, 500 (1975); Allen v. State Bd. o f Elections, 393 U.S. 

544 (1969); Janis v. Nelson, No. CR 09-5019-KES, 2009 U.S. Dist. LEXIS 109569 

(D.S.D. Nov. 24, 2009) (ruling that Native American plaintiffs had standing to 

challenge denial of their right to vote under Section 2 of VRA despite county’s 

voluntary act of placing their names back on voter registration rolls).

Logic also dictates that the same evidence that established a Section 2 

violation under the former version of the statute also establishes a violation under 

the statute's current incarnation. The pervasive racial discrimination in 

Washington's criminal justice system, demonstrated by the evidence in this record, 

has not been eliminated by HB 1517. Under both regimes, a voting qualification 

“interacts with external factors” such as “racial bias in Washington’s criminal 

justice system to deny minorities an equal opportunity to participate in the state’s 

political process.” Farrakhan I, 338 F.3d at 1012, 1014 (emphasis omitted). It

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was race-based disparities in who enters Washington’s criminal justice system and 

who is incarcerated by it that were established by this record. See discussion on 

page 4 above. The thousands of persons incarcerated by this system and on 

community custody even after the passage of HB 1517 are precisely the persons 

who are still denied their voting rights. Reasonable inferences from this evidence 

therefore support that African-American, Latino and Native American 

individuals are still adversely affected by the disfranchisement statute at 

significantly disproportionate levels, and there is still no race-neutral explanation 

for that racial disparity.

C. Remand Is The Appropriate Remedy If The Court Believes The Effect
Of HB 1517 Is Relevant To The VRA Analysis.

Finally, if the En Bane Pa*el is inclined to reverse the Panel Majority’s 

decision, the appropriate disposition is not to rule in Defendants’ favor on the VRA 

claim but rather to remand this matter to the district court so that Plaintiffs can 

present additional evidence showing that the Washington disfranchisement statute 

violates Section 2 of the VRA even after HB 1517 was enacted. As the Panel 

Dissent notes, “It is not our job to consider, in the first instance, the effect this new 

law has on plaintiffs' case and whether the totality of the circumstances analysis 

under § 2 of the Voting Rights Act should be different ....” Farrakhan II, 590 

F.3d at 1018. The Panel Dissent agrees that the State is not entitled to summary 

judgment but urges a remand to consider the effect of HB 1517. Additionally, the 

Dissent notes, “As to Senate Factor 5 itself, significant factual issues remain.” Id. 

at 1019.

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Any factual issues and the inferences to be drawn from them should be 

addressed by the district court on remand. To prove the State’s claim that the 

racial disparity shown in this record has been eliminated by HB 1517, or its claim 

that minorities have disproportionately benefitted in the restoration of their rights 

to vote under HB 1517, evidence would need to be gathered as to the number of 

felons who remain disenfranchised and the racial breakdown of that group of 

persons, then the new numbers would need to be subjected to a statistical analysis 

comparing the already-established racial disparities under the prior law to the new 

numbers. The analysis would need to consider that HB 1517 only “provisionally” 

restores voting rights to persons who have completed prison and community 

custody, and the restoration can be revoked for non-payment of legal financial 

obligations in some circumstances. See Supplemental Brief of Defendants filed 

May 29, 2009 at 2 (noting that provisional restoration of voting rights under HB 

1517 can be revoked); see also Stewart v. Blackwell, 444 F.3d 843 (exemplifying 

comparative statistical analysis necessary for vote-denial claim under VRA results 

test). At the very least, Plaintiffs should be given the opportunity, before a final 

decision issues in this case, to rebut and test whatever evidence the State claims 

supports summary judgment after HB 1517. See Levyv. Lexington Cnty., S.C., 589 

F.3d 708, 714 n.8 (4th Cir. 2009) (ruling that subsequent evidence favorable to 

government in VRA case should be considered, but explaining that to “allow one 

side to supplement the record without allowing the opposing party the opportunity 

to contest the admissibility, reliability, and accuracy of the new evidence, and to 

offer rebuttal evidence, would implicate due process concerns”).

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CONCLUSION

Over the 14 years that this case has been litigated, extensive and compelling 

evidence has been presented showing that Washington's felon disenfranchisement 

law violates the VRA and perpetuates the illegal denial of the fundamental right to 

vote on the basis of race in this state. The evidence in this record, gathered before 

the passage of HB 1517 but still valid and compelling after its passage, confirms 

that Washington's felon disenfranchisement law imports racial discrimination from 

the criminal justice system into the political process. This is precisely the kind of 

“result” that Section 2 of the VRA was designed to eradicate. See South Carolina 

v. Katzenbach, 383 U.S. 301,308 (1966) (recognizing Congress enacted VRA in 

1965 with intent to “banish the blight of racial discrimination in voting, which 

ha[d] infected the electoral process in parts of our country for nearly a century”). 

As the Panel Majority correctly recognizes, “Section 2 of the VRA demands that 

such racial discrimination not spread to the ballot box.” Farrakhan //, 590 F.3d at 

1015. The Panel Majority’s analysis is correct: both the law and the facts in this 

case justify summary judgment for Plaintiffs, and ACLU respectfully urges the En 

Banc Panel to rule accordingly. Alternatively, if the En Banc Panel believes more 

factual development is needed regarding the effect of HB 1517, a remand to the 

district court is the appropriate remedy.

13
70118999 1 0099820-00266



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Dated: June 11,2010. STOEL RIVES LLP

s/ Leonard Feldman 
Leonard Feldman 
P.K. Runkles-Pearson 
Daniel Swedlow 
Stoel Rives LLP
600 University Street, Suite 3600 
Seattle, WA 98101

Sarah A. Dunne 
Nancy Talner
American Civil Liberties Union of 
Washington Foundation 
901 Fifth Ave., Suite 630 
Seattle, WA 98164

Peter A. Danelo
2021 First Avenue, Apt. C14
Seattle, WA 98121

Laughlin McDonald 
Nancy G. Abudu 
ACLU Voting Rights Project 
230 Peachtree St. NW, Suite 1440 
Atlanta, GA 30303

Attorneys for Amici Curiae American Civil 
Liberties Union Of Washington And 
American Civil Liberties Union

14
70118999.1 0099820-00266



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CERTIFICATE OF COMPLIANCE

(Fed. R. App. P. 29(c)(5) and Circuit Rule 29-2(c)(3))

1. This brief complies with the type-volume limitation of Circuit Rule 29- 

2(c)(3) because this brief contains 3,614 words, excluding the parts of the brief 

exempted by Fed R. App. P. 32(a)(7)(B)(iii).

2. T his brief complies with the typeface requirements of Fed R. App. P. 

32(a)(5) and the type style requirements of Fed R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using MicrosoftN Word 

2007 in 14-point Times New Roman font.

Dated: June 11,2010. STOEL RIVES LLP

s/ P. K. Runkles-Pearson 
Leonard Feldman 
P.K. Runkles-Pearson 
Daniel Swedlow 
Stoel Rives LLP
600 University Street, Suite 3600 
Seattle, WA 98101

Attorneys for Amici Curiae American Civil 
Liberties Union Of Washington And 
American Civil Liberties Union

15
70118999.1 0099820-00266



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CERTIFICATE OF SERVICE

United States Court of Appeals Docket Number: No. 06-35669

I hereby certify that I electronically filed the foregoing BRIEF OF AMICI 

CURIAE AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON AND 

AMERICAN CIVIL LIBERTIES UNION IN SUPPORT OF 

PEAINTIFFS/APPELLANTS with the Clerk of the Court for the United States 

Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on 

June 11,2010.

I certify that all participants in the case are registered CM/ECF users and 

that service will be accomplished by the appellate CM/ECF system.

Dated: June 11.2010. STOEL RIVES LLP

s/ P.K. Runkles-Pearson 
Leonard Feldman 
P.K. Runkles-Pearson 
Daniel Swedlow 
Stoel Rives LLP
600 University Street, Suite 3600 
Seattle, WA 98101

Attorneys for Amici Curiae American Civil 
Liberties Union Of Washington And 
American Civil Liberties Union

16
70118999.1 0099820-00266



Case: 06-35669 06/11/2010 Page: 1 of 40 ID: 7370113 DktEntry: 124

No. 06-35669 
IN THE

ptmteii J^tates (Emnrt af appeals
FOR THE NINTH CIRCUIT

Muhammad Shabazz Farrakhan, aka Ernest S. Walker; Al-Kareem Shadeed; 
Marcus X. Price; Ramon Barrientes; Timothy Schaaf; Clifton Briceno,

Plaintiffs-Appellants, 
v.

Christine O. Gregoire; Sam Reed; Harold W. Clarke; State of Washington,
Defendants-Appellees.

On Appeal from the United States District Court 
for the Eastern District of Washington at Spokane 

No. CV 96-0076 (RHW)
Honorable Robert H. Whaley, District Judge

BRIEF OF AMICUS CURIAE BRENNAN CENTER 
FOR JUSTICE AT NEW YORK UNIVERSITY SCHOOL OF LAW 

IN SUPPORT OF PLAINTIFFS-APPELLANTS

DANIEL F. KOLB 
EDMUND POLUBINSKI III 
Davis Polk & Wardwell LLP 
450 Lexington Avenue 
New York, New York 10017 
(212)450-4695

Attorneys for Amicus Curiae 
Brennan Center for Justice at 
New York University School o f Law



Case: 06-35669 06/11/2010 Page:2of40 ID: 7370113 DktEntry: 124

RULE 26.1 DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Amicus Curiae 

Brennan Center for Justice at New York University School of Law states that it is a 

nonprofit organization, that it has no parent corporation, and that it has not issued

shares of stock.



Case: 06-35669 06/11/2010 Page:3of40 ID: 7370113 DktEntry: 124

TABLE OF CONTENTS

Page

RULE 26.1 DISCLOSURE STATEMENT..............................................................i

TABLE OF CONTENTS......................................................................................... ii

TABLE OF AUTHORITIES.................................................................................. iv

IDENTITY AND INTEREST OF AMICUS........................................................... 1

SUMMARY OF ARGUMENT...............................................................................2

THIS COURT’S PRIOR DECISIONS IN THIS CASE ....................................... 4

ARGUMENT...........................................................................................................6

I. THE VRA APPLIES TO WASHINGTON'S FELON
DISENFRANCHISEMENT LAW................................................................6

A. Section 2 of the VRA Should be Read According
to its Plain Meaning.............................................................................6

1. Washington's Felon Disenfranchisement 
Law Is a “Voting Qualification” That Denies 
“Citizens of the United States” the Right to
Vote...........................................................................................7

2. The Vote Denial Occurs “in a Manner which 
Results in” Discrimination “on Account of
Race” .........................................................................................8

3. The Breadth of the VRA Does Not Render it
Ambiguous.............................................................................. 10 4

4. This Court’s Analysis Must Begin and End
with Plain Meaning.................................................................12

ii



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B. Even If the Court Were To Look Beyond the 
Statute’s Plain Meaning, the VRA's Legislative 
History is Consistent with the Words of the Statute....................... 18

II. THE CLEAR STATEMENT RULE IS NOT
IMPLICATED BY THE VRA...................................................................22

CONCLUSION..................................................................................................... 27

iii



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TABLE OF AUTHORITIES

Cases

Page

Alien v. Slate Bel. o f Elections, 393 U.S. 544 (1969)................................... 3, 11,18

Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822
(9th Cir.), cert, denied, 130 S. Ct. 280 (2009)..................................................  12

Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., 448 F.3d 1092 (9th Cir. 2006) (en banc).............................................. 12

Azarte v. Ashcroft, 394 F.3d 1278 (9th Cir. 2005)................................................. 12

BedRoc Ltd., LLC v. United States, 541 U.S. 176 (2004).....................................  12

Caminetti v. United States, 242 U.S. 470 (1917)................................................... 13

Carson Harbor Vi//., Ltd. v. Unocal Corp.,
270 F.3d 863 (9th Cir. 2001) (en banc)............................................................ 14

Chisom v. Roemer, 501 U.S. 380 (1991)........................................................... 8, 11

City o f Rome v. United States, 446 U.S. 156 (1980)............................................. 26

Cleveland v. City o f Los Angeles, 420 F.3d 981 (9th Cir. 2005)..................... 12, 14

Conn. Nat’I Bank v. Germain, 503 U.S. 249 (1992)............................................... 7

Crown Pac. v. OSHRC, 197 F.3d 1036 (9th Cir. 1999) ....................................... 12

Demarest v. Manspeaker, 498 U.S. 184 (1991)..................................................... 14

Dep't o f Hons. v. Rucker, 535 U.S. 125 (2002).....................................................  13

Donchev v. Mukasey, 553 F.3d 1206 (9th Cir. 2009)................................................10

IV



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Dumont v. Ford Motor Credit Co., 581 F.3d 1104
(9th Cir. 2009).................................................................................................... 10

EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742
(9th Cir. 2003)................................................................................................... 12

Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (2005)............................. 14

Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir.),
reh’g granted, 603 F.3d 1072 (9th Cir. 2010).................................................6, 9

Farrakhan v. State o f Washington, 338 F.3d 1009
(9th Cir. 2003), cert, denied, 543 U.S. 984 (2004).................................... passim

Fernandez v. Finer, 673 P.2d 191, 336 Wash. App. 210
(Wash. App. 1983)..............................................................................................17

Flowers v. First Hawaiian Bank, 295 F.3d 966 (9th Cir. 2002)........................... 13

Gibson v. Chrysler Corp., 261 F.3d 927 (9th Cir. 2001)...................................... 12

Golden W. Ref. Co. v. Suntrust Bank, 538 F.3d 1233
(9th Cir. 2008)..................................................................................................... 12

Goodloe v. Madison County Bd. o f Election Commissioners,
610 F. Supp. 240 (S.D. Miss. 1985)....................................................................9

Gov't o f Guam, ex rel. Guam Economic Dev. Auth. v. United
States, 179 F.3d 630 (9th Cir. 1999)....................................................................... 12

Gregory v. Ashcroft, 501 U.S. 452 (1991)........................................................22, 23

Griffin v. Oceanic Contractors, 458 U.S. 564 (1982) .......................................... 14

Harrison v. PPG Indus., 446 U.S. 578 (1980).......................................................21

Harvey v. Brewer, Nos. 08-17253, 08-17567, 2010 U.S. App.
LEXIS 10822 (9th Cir. May 27, 2010)..............................................................15

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006)................................................. passim

v



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Holder v. Hall, 512 U.S. 874 (1994)..................................................................... 20

Howard v. Gilmore, No. 99-2285, 2000 WL 203984
(4th Cir. Feb. 23,2000).......................................................................................4

Hunter v. Underwood, 471 U.S. 222 (1985)..........................................................  17

Ileto v. Clock, Inc., 565 F.3d 1126 (9th Cir. 2009)............................................... 10

Int 7 Bhd. o f Teamsters v. United States, 431 U.S. 324 (1977)............................. 20

John v. United States, 247 F.3d 1032 (9th Cir. 2001)........................................... 10

Johnson v. Governor o f Fla., 405 F.3d 1214 (11th Cir. 2005),
cert, denied, 546 U.S. 1015 (2005)................................................. 11, 15, 21, 26

Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006)........................................... 10

Lopez v. Monterey County, 525 U.S. 266 (1999)............................................ 24, 26

Louisiana v. United States, 380 U.S. 145 (1965).................................................. 23

Majewski v. St. Rose Dominican Hasp.. 310 F.3d 653
(9th Cir. 2002)................................ ...................................................................12

Maney v. Kagenveama, 541 F.3d 868 (9th Cir. 2008)........................................... 12

Milliken v. Bradley, 433 U.S. 267 (1977).............................................................. 20

Miss. State Chapter, Operation Push v. Al/ain, 674 F. Supp.
1245 (N.D. Miss. 1987), ajf'dsub nom. Miss. State Chapter,
Operation Push v. Mabus, 932 F.2d 400 (5th Cir. 1991)................................... 9

Mitchum v. Foster, 407 U.S. 225 (1972)......................................................... 24, 26

Moskal v. United States, 498 U.S. 103 (1990)....................................................... 21

Northwest A ustin Mun. Util. Dist. No. One v. Holder,
129 S. Ct. 2504 (2009).......................................................................................14

vi



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Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 
F. Supp. 2d 221 (D.D.C. 2008), rev dsub nom. on other 
grounds, Northwest Austin Mun. Util. Dist. No. One v.
Holder, 129 S. Ct. 2504 (2009).........................................................................25

Nuclear Info. & Res. Serv. v. U.S. DOT Research & Special
Programs Admin., 457 F.3d 956 (9th Cir. 2006)..............................................  12

Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ...........................  12

Ortiz v. City o f Philadelphia, 824 F. Supp. 514 (E.D. Pa. 1993)..........................  10

Pa. Dep’t o f Corrections v. Yeskey, 524 U.S 206 (1998)................................  11,23

Ratzlafv. United States, 510 U.S. 135 (1994)....................................................... 14

Reno v. Nat’l Transp. Safety Bd., 45 F.3d 1375 (9th Cir. 1995)........................... 14

Reynolds v. Sims, i l l  U.S. 533 (1964)................................................................... 10

Rice v. Cayetano, 528 U.S. 495 (2000)............................................................16, 18

Rubin v. United States, 449 U.S. 424 (1981).......................................................... 7

SEC v. McCarthy, 322 F.3d 650 (9th Cir. 2003)....................................................14

Salas v. Southwest Texas Junior College District,
964 F.2d 1542 (5th Cir. 1992)...........................................................................10

Salinas v. United States, 522 U.S. 52 (1997)....................................................23, 25

Sanchez v. Holder, 560 F.3d 1028 (9th Cir. 2009)................................................  12

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985)............................................. 26

Silvers v. Sony Pictures Entm 7, Inc., 402 F.3d 881
(9th Cir. 2005)....................................................................................................  10

Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009)................................................. passim

vii



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Smith v. Salt River Project Agric. Improvement & Power Dist.,
109 F.3d 586 (9th Cir. 1997)...........................................................................8,9

South Carolina v. Katzenbach, 383 U.S. 301 (1966).................................. 3, 11,18

State v. Schmidt, 23 P.3d 462, 143 Wash. 2d 658 (Wash. 2001) .........................  17

Tennessee v. Lane, 541 U.S. 509 (2004)................................................................25

Texaco Inc. v. United States, 528 F.3d 703 (9th Cir. 2008)..................................  12

Thornburg v. Gingles, 478 U.S. 30 (1986).....................................................5, 8, 19

Trop v. Dulles, 356 U.S. 86 (1958)........................................................................... 8

United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003)
(en banc).............................................................................................................. 12

United States v. Fontanilla, 849 F.2d 1257 (9th Cir. 1988)..................................  13

United States v. Ga/lenardo, 579 F.3d 1076 (9th Cir. 2009)................................ 10

United States v. Gamboa-Cardenas, 508 F.3d 491
(9th Cir. 2007)..................................................................................................... 12

United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007)...................................... 12

United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002) ......................... 12

United States v. Johnson Controls, Inc., 457 F.3d 1009
(9th Cir. 2006)..................................................................................................... 12

United States v. Nader, 542 F.3d 713 (9th Cir. 2008), cert.
denied, 129 S. Ct. 1984 (2009)........................................................................... 12

United States v. Rashkovski, 301 F.3d 1133 (9th Cir. 2002)..................................12

United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989)................................12

viii



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United Slates v. Stephens, 439 F.3d 1083 (9th Cir. 2006)
(en banc)..............................................................................................................12

United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005)....................................... 12

United States v. TRW Rifle 7.62 x 51mm Caliber,
447 F.3d 686 (9th Cir. 2006).............................................................................. 12

United States ex rel. Lujan v. Hughes Aircraft Co.,
243 F.3d 1181 (9th Cir. 2001)............................................................................ 13

United States v. Young, 458 F.3d 998 (9th Cir. 2006).......................................... 12

Washington v. Chu, 558 F.3d 1036 (9th Cir. 2009)................................................10

Webb v. Smart Document Solutions, LLC, 499 F.3d 1078
(9th Cir. 2007).....................................................................................................12

Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986)....................................................4

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104
(9th Cir. 2000).....................................................................................................12

Whitfield v. United States, 543 U.S. 209 (2005).........................................................21

Statutes & Rui.es

Voting Rights Act § 14(c)(1), 42 U.S.C. § 19731(c)(1)........................................... 7

Voting Rights Act § 2, 42 U.S.C. § 1973 ........................................................passim

U.S. Const, amend. XIV.................................................................................. passim

U.S. Const, amend. XV.................................................................................... passim

W.A. Const, art. VI, § 3 ............................................................................................. 7

IX



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Other Authorities

An Act to Provide for the More Efficient Government of the
Rebel States, ch. 153, 14 Stat. 428, § 5 (1867)................................................. 25

J. Morgan Kousser, The Voting Rights Act and the Two
Reconstructions, in Controversies in Minority Voting: The 
Voting Rights Act in Perspective (Bernard Grofman &
Chandler Davidson eds., 1992)..........................................................................25

S. Rep. No. 89-162 (1965), as reprinted in 1965 U.S.C.C.A.N. 2508.................. 20

S. Rep. No. 97-417 (1982), as reprinted in 1982 U.S.C.C.A.N. 178.............. 18, 19

x



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IDENTITY AND INTEREST OF AMICUS

The Brennan Center for Justice at New York University School of Law 

respectfully submits this brief amicus curiae in support of Plaintiffs-Appellants. 

This brief addresses the scope of Section 2 of the Voting Rights Act (UVRA”) and 

its applicability to discrimination that has been shown to result from Washington 

State’s felon disenfranchisement law. This brief does not address in detail issues 

as to the Fourteenth and Fifteenth Amendments, which are addressed in briefs filed 

by other amici in this case. The Plaintiffs-Appellants have consented to the filing 

of this brief, and Defendants-Appellees do not object to its filing.

The Brennan Center is a not-for-profit, nonpartisan public policy and law 

institute that focuses on issues of democracy and justice. Through the activities of 

its Democracy Program, the Brennan Center seeks to bring the ideal of 

representative self-government closer to reality by working to eliminate barriers to 

full and equal political participation and to ensure that public policy and 

institutions reflect the diverse voices and interests that make for a rich and 

energetic democracy. The Brennan Center’s Right to Vote project focuses 

exclusively on restoring voting rights, and engages in litigation, legislative and 

administrative advocacy, and public education nationwide. The Brennan Center's 

efforts in the promotion and protection of voting rights, particularly on behalf of 

disadvantaged and minority communities, are extensive, including authoring



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numerous reports; launching legislative initiatives; and participating as counsel or 

amicus in a number of federal and state cases involving voting and elections issues.

The Brennan Center has an interest in assuring that the VRA is enforced to 

fulfill its purpose to eliminate racial discrimination in voting. We urge this Court 

to affirm its two prior decisions and hold that Washington's felon 

disenfranchisement law violates the VRA because it results in a denial of the right 

to vote on account of race.

SUMMARY OF THE ARGUMENT 

Section 2 of the VRA unequivocally prohibits any voting qualifications, 

standards, practices and procedures applied by any State “which resultf] in a denial 

or abridgement of the right of any citizen of the United States to vote on account of 

race or color.” 42 U.S.C. § 1973(a) (emphasis added) (hereinafter “Section 2”).

The statute’s language is clear. And it contains no exceptions. Interpreting that 

language, a unanimous panel of this Court has already concluded that 

Washington's felon disenfranchisement law is a “voting qualification” subject to 

Section 2. Farrakhan v. State o f Washington, 338 F.3d 1009 (9th Cir. 2003), cert, 

denied, 543 U.S. 984 (2004) (“Farrakhan F). That decision should be affirmed.

A touchstone of statutory interpretation is that the plain meaning of the 

statute controls when it is clear on its face. No party or opinion from any other 

Circuit to address this issue has identified any ambiguity in Section 2’s broad

2



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language. Washington State’s felon disenfranchisement law is a voting 

qualification, and based on the uncontroverted record in this case, this Court found 

that it results in the denial of the right to vote on account of race. A host of cases 

from this and other Circuits and from the Supreme Court make clear that the 

analysis should properly end there.

Instead, Defendants-Appellees would have the Court read an exception for 

felon disenfranchisement statutes into Section 2 that has no basis in the statutory 

language or the legislative history, and that is inconsistent with the well- 

established broad and remedial purpose of the VRA. If Congress had wanted to 

include an exception for felon disenfranchisement laws, it could have done so by 

writing the exception into the statute. It did not. And there is no basis upon which 

the Court should now, decades later, seek to do so. To the contrary, this Court and 

the Supreme Court have repeatedly recognized that the objective of the VRA is to 

“rid[ | the country of racial discrimination in voting.” Farrakhan I, 338 F.3d at 

1014 (quoting South Carolina v. Katzenbach, 383 U.S. 301,315 (1966)), and that 

it is a statute of “the broadest possible scope,” Allen v. State Bel. o f Elections, 393 

U.S. 544, 567(1969).

In spite of this, divided courts of the First, Second and Eleventh Circuits 

have concluded that the VRA does not apply to state felony disenfranchisement 

laws on the basis of: (1) congressional intent, (2) legislative history, or (3) the clear

3



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statement rule.1 For the reasons set forth below -  and as previously determined by 

this Court -  such considerations are neither proper nor persuasive because the 

statutory text of Section 2 is clear and unambiguous.

On this appeal, the Court need not address the per se validity of felon 

disenfranchisement laws. Nor does the Court need to consider the intent of the 

Washington legislature or question the validity of any particular felony conviction. 

Instead, this appeal presents a simple, narrow question of statutory interpretation, 

whether -  under the totality of the circumstances -  Washington’s law results in 

voting discrimination in violation of VRA Section 2. On the uncontroverted record 

in this case, it does.

THIS COURT’S PRIOR DECISIONS IN THIS CASE

A unanimous three-judge panel of this Court concluded that Plaintiffs- 

Appellants’ claim of vote denial under Washington’s felon disenfranchisement law 

is cognizable under Section 2 of the VRA. Farrakhan /, 338 F.3d at 1016.

Looking to the plain language of Section 2, the Court recognized that “[fjelon 

disenfranchisement is a voting qualification, and Section 2 is clear that any voting *

'The Fourth and Sixth Circuits affirmed decisions dismissing claims that 
Virginia and Tennessee’s felon disenfranchisement laws violated Section 2 
because plaintiffs failed to demonstrate discrimination on account of race. These 
considerations do not apply here because of the uncontroverted record on appeal. 
Notably, those Circuits did not question the VRA’s applicability to felon 
disenfranchisement laws. See Howard v. Gilmore, No. 99-2285, 2000 WL 203984 
(4th Cir. Feb. 23, 2000); Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986).

4



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qualification that denies citizens the right to vote in a discriminatory manner 

violates the VRA.” Id. (emphasis in original).

The Court explained that this conclusion holds regardless of whether the 

statute at issue is facially neutral, emphasizing that “Congress specifically 

amended the VRA to ensure that, ‘in the context of all the circumstances in the 

jurisdiction in question,’ any disparate racial impact of facially neutral voting 

requirements did not result from racial discrimination.” Id. The Court also 

specifically addressed and rejected the notion that the Fourteenth Amendment 

somehow exempts felon disenfranchisement statutes. Id.

The Court also rejected the argument that Section 2 contains an implied 

limitation under which Plaintiffs-Appellants would need to establish that 

Washington’s law “was either ‘motivated by racial animus, or that its operation by 

itself has a discriminatory effect.’” Id. Instead, tracking the language of the VRA, 

the panel held that the district court must consider the totality of the circumstances 

in which the disenfranchisement law operates, and determine whether 

Washington’s law “interacts with social and historical conditions to cause an 

inequality in the opportunities enjoyed by black and white voters to elect their 

preferred representatives.” Id. at 1017 (quoting Thornburg v. Gingles, 478 U.S. 30, 

47(1986)).

5



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On a second appeal, this Court found that the disproportionate impact of 

Washington’s law on racial minorities could not be explained by factors other than 

race. Farrakhan v. Gregoire, 590 F.3d 989, 1012 (9th Cir.), reh'g granted, 603 

F.3d 1072 (9th Cir. 2010) (“Farrakhan IF). Based on that conclusion, the Court 

held that ‘‘Plaintiffs have demonstrated that the discriminatory impact of 

Washington's felon disenfranchisement law is attributable to racial discrimination 

in Washington's criminal justice system; thus, that Washington’s felon 

disenfranchisement law violates §2 of the VRA.” Id. at 1016.

ARGUMENT

I. THE VRA APPLIES TO WASHINGTON’S FELON 
DISENFRANCHISEMENT LAW

A. Section 2 of the VRA Should be Read
According to its Plain Meaning________________

Section 2 of the VRA is clear on its face. It provides, in relevant part:

No voting qualification or prerequisite to voting or standard, practice, or 
procedure shall be imposed or applied by any State or political subdivision 
in a manner which results in a denial or abridgement of the right of any 
citizen of the United States to vote on account of race or color.

42 U.S.C. § 1973(a) (emphasis added). There is nothing ambiguous about this

language. It contains no exceptions, and nothing about it even hints that Congress

intended courts to exempt an entire category of statutes from its reach.

Since the plain language of the VRA is clear, this Court’s analysis of its

meaning must begin and end there. As the Supreme Court has explained, “[w]hen

6



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the words of a statute are unambiguous, this first canon is also the last: ‘judicial 

inquiry is complete. Conn. N at’l Bank v. Germain, 503 U.S. 249, 254 (1992) 

(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).

1. Washington’s Felon Disenfranchisement Law Is a “ Voting
Qualification ” That Denies “Citizens o f the United States” the 
Right to Vote

As this Court explained in Farrakhan /, Washington’s felon 

disenfranchisement law, W.A. Const, art. VI, § 3, is indisputably a voting 

qualification.2 3 338 F.3d at 1016. It affects one’s qualification to vote because “[i]t 

denies those convicted of felonies the opportunity to vote.” Hayden v. Pataki, 449 

F.3d 305, 343 (2d Cir. 2006) (Parker, J., dissenting). '

It is just as clear that Section 2 protects any American citizen from 

qualifications resulting in the denial or abridgement of the right to vote on account 

of race. 42 U.S.C. § 1973(a) (emphasis added). Nothing in the statute suggests

2 And even if it were not, it would clearly be a “standard, practice, or 
procedure.”

3 Indeed, as defined in the VRA, the term “vote” includes “all action 
necessary to make a vote effective in any primary, special, or general election, 
including, but not limited to, registration, listing pursuant to this Act, or other 
action required by law prerequisite to voting.” 42 U.S.C. § 19731(c)(1).

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that Section 2’s protections are available only to citizens who have never been 

convicted of a crime.4

2. The Vote Denial Occurs “in a Manner which Results in ” 
Discrimination “on Account o f Race ”

As this Court explained in Farrakhan /, to violate Section 2 a voting statute 

need not operate by itself to discriminate. This Court rightly emphasized that a 

‘“ by itself causation standard would effectively read an intent requirement back 

into the VRA.” Farrakhan T 338 F.3d at 1019. Instead, Section 2 requires 

evidence only of a discriminatory result, and not of a discriminatory intent. See 

Chisom v. Roemer, 501 U.S. 380, 394 (1991).

Section 2 provides that a voting qualification violates the VRA when a 

plaintiff is able to show, based on the “totality of the circumstances,” that the 

challenged practice results in discrimination on account of race. Under this 

standard, courts must determine whether a challenged policy or practice “interacts 

with social and historical conditions to cause an inequality in the opportunities 

enjoyed by black and white voters to elect their preferred representatives.” Gingles, 

478 U.S. at 47; see also Smith v. Salt River Project Agric. Improvement & Power

4 Individuals with felony convictions in Washington State and elsewhere are 
quite clearly still “citizen[s] of the United States.” “Citizenship is not a license that 
expires upon misbehavior,” Trop v. Dulles, 356 U.S. 86, 92 (1958), and, thus, 
cannot be revoked solely by virtue of felony convictions, “however reprehensible 
that conduct may be,” id. at 93.

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Dist., 109 F.3d 586, 595-96 (9th Cir. 1997).5 As the panel in Farrakhan I 

concluded, “racial bias in the criminal justice system may very well interact with 

voter disqualifications to create the kinds of barriers to political participation on 

account of race that are prohibited by Section 2.” Farrakhan /, 338 F.3d at 1020 

(emphasis added).

A bare statistical showing that a statute has a disproportionate impact on 

racial minorities is not enough for a Section 2 violation. Plaintiffs must show that 

the disproportionate impact refects racial discrimination in order to satisfy the “on 

account of race” evidentiary burden of the results test. Where plaintiffs have failed 

to satisfy the “on account of race” requirement, Section 2 claims have rightly been 

dismissed. This Court’s decision in Salt River is one example. In Salt River, this 

Court declined to strike down a property ownership requirement because the 

allegations of discrimination in that case were supported only by a “bare statistical

5 Because the focus is on the result and not on the intent, facially neutral 
voting practices have been appropriately challenged under Section 2. See, e.g., 
Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245 (N.D. Miss. 
1987), aff’d sub nom. Miss. State Chapter, Operation Push v. Malms, 932 F.2d 400 
(5th Cir. 1991) (requirement that voters register twice); Goodloe v. Madison 
County Bd. o f Election Commissioners, 610 F. Supp. 240, 243 (S.D. Miss. 1985) 
(invalidation of absentee ballots).

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showing of disproportionate impact" without further evidence of discrimination 

“on account of race.” Salt River, 109 F.3d at 595.6

Unlike Salt River or other similar cases, Plaintiffs-Appellants have satisfied 

their burden in this ease. The uncontroverted record in this case demonstrates that 

the evidence of differing treatment of racial minorities under Washington’s 

criminal justice system cannot be explained by “legitimate factors" and is thus 

“unwarranted.” Farrakhan II, 590 F.3d at 994-95. The Court concluded that -  as 

shown on this record -  when racial bias results in “some people becoming felons 

not just because they have committed a crime, but because of their race, then that 

felon status cannot, under [Section 2] disqualify felons from voting.” Id. at 1014. 

The record here is thus not limited to a bare statistical showing of disparate impact 

on racial minorities, but instead has been found to establish that the right to vote 

has been denied “on account of race.”

6 Other courts have likewise concluded that a bare statistical showing of 
disparate impact by itself, without a showing of discrimination “on account of 
race" does not satisfy Section 2. See, e.g., Salas v. Southwest Texas Junior College 
District, 964 F.2d 1542 (5th Cir. 1992) (rejecting a claim under Section 2 where 
there was a 7% disparity between turnout for Hispanic and white voters because 
plaintiffs “offered no evidence directly linking this low turnout with past official 
discrimination”); Ortiz v. City o f Philadelphia, 824 F. Supp. 514 (E.D. Pa. 1993) 
(holding that voter purge laws were not a per se violation of Section 2 because 
there was no evidence that the law interacted with social and historical factors to 
result in discrimination).

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3. The Breadth o f the VRA Does Not Render it Ambiguous

The Supreme Court has made clear that voting is a fundamental right and 

that “the right to vote freely for the candidate of one’s choice is the essence of a 

democratic society.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). In recognition 

of the importance of voting rights to our society, the goal of the VRA is to root out 

and eliminate all race-based discrimination in voting. See Chisorn, 501 U.S. at 403 

(citing Katzenbach, 383 U.S. at 315). To that end, Section 2 was intended to have 

“the broadest possible scope.” Allen, 393 U.S. at 566-67 (1969); accord Chisorn, 

501 U.S. at 403; Katzenbach, 383 U.S. at 316. None of the majority opinions in 

other Circuits dispute the breadth of Section 2. Simmons v. Galvin, 575 F.3d 24,

35 (1st Cir. 2009) (“[Tjhe language of § 2(a) is . . . broad.”); Hayden, 449 F.3d at 

315 (“There is no question that the language of § 1973 is extremely broad.”); 

Johnson v. Governor o f Fla., 405 F.3d 1214, 1228 (11th Cir. 2005) (noting the 

statute’s “broad language”).

As the Supreme Court has stated expressly, a statute's breadth does not 

mean it is ambiguous: “[Tjhe fact that a statute can be applied in situations not 

expressly anticipated by Congress does not demonstrate ambiguity. It 

demonstrates breadth.” Pa. D ept o f Corrections v. Yeskey, 524 U.S 206, 212 

(1998) (citation and internal quotation marks omitted).

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4. This Court’s Analysis Must Begin and End with Plain Meaning 

Because the text of the VRA is clear and unambiguous, this Court need not 

go further to determine the meaning of the statute.7 As the Supreme Court has

7 See, e.g., Amalgamated Sugar Co. LLC v. Vilsack, 563 F.3d 822, 829 (9th 
Cir. 2009) (Smith, N., J.), cert, denied, 130 S. Ct. 280 (2009); Sanchez v. Holder, 
560 F.3d 1028, 1033-34 (9th Cir. 2009) (Silverman, J.); United States v. Nader,
542 F.3d 713, 717 (9th Cir. 2008) (Clifton, J.), cert, denied, 129 S. Ct. 1984 (2009); 
Maney v. Kagenveama, 541 F.3d 868, 872 (9th Cir. 2008) (Siler, J.); Golden W.
Ref. Co. v. Suntrust Bank, 538 F.3d 1233, 1238 (9th Cir. 2008) (Gould. J.); Texaco 
Inc. v. United States, 528 F.3d 703, 710 (9th Cir. 2008) (Callahan, J.); United 
States v. Gamboa-Cardenas, 508 F.3d 491,496 (9th Cir. 2007) (Smith, M., J.); 
United States v. Gonzales, 506 F.3d 940, 949 (9th Cir. 2007) (en banc) (Ikuta, J., 
dissenting); Webbv. Smart Document Solutions, LLC, 499 F.3d 1078, 1083-84 (9th 
Cir. 2007) (Paez, J.); United States v. Young, 458 F.3d 998, 1009 (9th Cir. 2006) 
(O’Scannlain, J.); United States v. Johnson Controls, Inc., 457 F.3d 1009, 1014 
(9th Cir. 2006) (Berzon, J.); Nuclear Info. & Res. Serv. v. United States DOT 
Research & Special Programs Admin., 457 F.3d 956, 960 (9th Cir. 2006) (Rymer, 
J.); Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., 448 F.3d 
1092, 1095-96 (9th Cir. 2006) (en bane) (Bybee, J., dissenting); United States v. 
TRW Rifle 7.62 x 51mm Caliber, 447 F.3d 686, 689 (9th Cir. 2006) (McKeown, J.); 
United States v. Stephens, 439 F.3d 1083, 1083 (9th Cir. 2006) (en banc) (Tallman, 
J., dissenting); United States v. Stewart, 420 F.3d 1007, 1021-22 (9th Cir. 2005) 
(Bea, J.); Cleveland v. City o f Los Angeles, 420 F.3d 981, 989 (9th Cir. 2005) 
(Pregerson, .1.); Azarte v. Ashcroft, 394 F.3d 1278, 1285 (9th Cir. 2005) (Reinhardt, 
.1.); EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742, 752-53 (9th Cir. 
2003) (en banc) (Tashima. .1.); Oregon Advocacy Cir. v. Mink, 322 F.3d 1101, 
1114-15 (9th Cir. 2003) (Fisher, J.); United States v. Cabaccang, 332 F.3d 622,
640 (9th Cir. 2003) (en banc) (Kozinski, J., dissenting); Majewski v. St. Rose 
Dominican Hosp., 310 F.3d 653, 656 (9th Cir. 2002) (Schroeder, J.); United States 
v. Gonzalez-Torres, 309 F.3d 594, 601 (9th Cir. 2002) (Rawlinson, J.); United 
States v. Rashkovski, 301 F.3d 1 133, 1136 (9th Cir. 2002) (Wardlaw, J.); Gibson v. 
Chrysler Corp., 261 F.3d 927, 940 (9th Cir. 2001) (Fletcher, W., .1.); Weyer v. 
Twentieth Century Fox Film Corp., 198 F.3d 1104, 1110 (9th Cir. 2000) (Kleinfeld, 
.1.); Crown Pac. v. OSHRC, 197 F.3d 1036, 1038-40 (9th Cir. 1999) (Thomas, J.); 
(...continued)

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stated, “|o]ur inquiry begins with the statutory text, and ends there as well if the 

text is unambiguous.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) 

(Rehnquist, C.J.). Indeed, where a “statute’s language is plain, 'the sole function 

of the courts is to enforce it according to its terms.”’ United States v. Ron Pair 

Enters., Inc., 489 U.S. 235, 241 (1989) (citing Caminetti v. United States, 242 U.S. 

470, 485 (1917)). The language of Section 2 contains no exemption for 

discrimination resulting from felon disenfranchisement laws, and such exceptions 

may not be read into unambiguous statutes. See Flowers v. First Hawaiian Bank, 

295 F.3d 966, 975 (9th Cir. 2002); United States ex rel. Lujan v. Hughes Aircraft 

Co., 243 F.3d 1181, 1187 (9th Cir. 2001); United States v. Fontanilla, 849 F.2d 

1257, 1258 (9th Cir. 1988).

When faced with an unambiguous statute, searching the legislative history 

for signs of ambiguity or contrary meaning is not only unnecessary, but also 

inappropriate. Dep't o f Hous. v. Rucker, 535 U.S. 125, 132-33 (2002). Courts 

must not “resort to legislative history to cloud a statutory text that is clear.”8

(continued...)

Gov’t o f Guam, ex rel. Guam Economic Dev. A nth. v. United States, 179 F.3d 630, 
633 (9th Cir. 1999) (Graber, J.).

8 See Cleveland, 420 F.3d at 990 (“According to the rules of statutory 
construction, the court can only look to legislative intent when a statute is 
ambiguous.... The best evidence of [legislative] purpose is the statutory text 
adopted by both Flouses of Congress and submitted to the President. Where that 
contains a phrase that is unambiguous -  that has a clearly accepted meaning in 
(...continued)

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Ratzlafv. United States, 510 U.S. 135, 147-48 (1994); accord Carson Harbor Vill., 

Ltd. v. Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001) (en banc). The 

“authoritative statement” of Congress’s intent is “the statutory text, not the 

legislative history or any other extrinsic material.” Exxon Mobil Corp. v.

Allapattah Servs., 545 U.S. 546, 568 (2005); see also Northwest Austin Mun. Util. 

Dist. No. One v. Holder, 129 S. Ct. 2504, 2513 (2009) (“Congress, not the 

[c]ourt[s],” is empowered “to determine in the first instance what legislation is 

needed to enforce [the Fifteenth Amendment].”).

The only instance when a court should look past the plain meaning of an 

unambiguous statute to other sources is when the plain meaning would create a 

result “so bizarre that Congress could not have intended it.” Demarest v. 

Manspeaker, 498 U.S. 184, 191 (1991) (quoting Griffin v. Oceanic Contractors,

458 U.S. 564, 571 (1982)); see SEC v. McCarthy, 322 F.3d 650, 655 (9th Cir. 2003) 

(“The plain meaning of a statute is always controlling 'unless that meaning would 

lead to absurd results.” ') (quoting Reno v. Nat 7 Transp. Safety Bd., 45 F.3d 1375, 

1379 (9th Cir. 1995)). No such case is presented here.

(continued...)

both legislative and judicial practice -  we do not permit it to be expanded or 
contracted by the statements of individual legislators or committees during the 
course of the enactment process.”) (internal citations omitted).

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None of the other Cireuits to confront this issue has identified a supportable 

reason to follow a different course. No opinion in any of these courts has 

identified any ambiguity in the VRA's text. Instead, the majority opinions in other 

Circuits -  each of which was accompanied by one or more dissenting opinions -  

have suggested that, beyond the statutory language, the history of felon 

disenfranchisement makes these statutes somehow different, and therefore 

impliedly exempt from Section 2 of the VRA.9 See Simmons, 575 F.3d at 34; 

Johnson, 405 F.3d at 1228; Hayden, 449 F.3d at 315-16. In particular, the majority 

opinions in other Circuits have emphasized and placed great weight on legislative 

history and other statutes accepting, or even endorsing, felon disenfranchisement 

as such -  including, for example, the passage of a felon disenfranchisement law in 

Washington, D.C. at approximately the same time as the passage of the VRA. See 

Simmons, 575 F.3d at 34, 46; Johnson, 405 F.3d at 1228; Hayden, 449 F.3d at 316, 

318-20.

9 Nor, as a panel of this Court recently recognized, does any “affirmative 
sanction” for felon disenfranchisement laws in Section 2 of the Fourteenth 
Amendment immunize such laws from congressional regulation. See Hawey v. 
Brewer, Nos. 08-17253, 08-17567, 2010 U.S. App. LEXIS 10822, at *22 (9th Cir. 
May 27, 2010) (“Simply because the Fourteenth Amendment does not itself 
prohibit States from enacting a broad array of felon disenfranchisement schemes 
does not mean that Congress cannot do so by legislation . . . .”) (emphasis added).

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But whether or not Congress believed felon disenfranchisement was 

acceptable generally does not mean Congress silently created a blanket exception 

for felon disenfranchisement laws that result in discrimination. Indeed, as Judge 

Parker stressed in his dissent in Hayden, “[t]o hold that Congress did not intend the 

VRA to cover felon disenfranchisement statutes is to hold that Congress actually 

intended to allow some forms of race-based voter disenfranchisement.” Hayden, 

449 F.3d at 357 (Parker, J., dissenting).

Nothing in any of the opinions in other Circuit courts supports the notion 

that Congress expressly -  or impliedly -  decided to give a free pass to felon 

disenfranchisement laws that result in uncontroverted racial discrimination. As 

Judge Calabresi said in his dissent in Hayden: “How the majority moves from the 

fact that Congress declined to proscribe race-neutral felon disenfranchisement to 

the conclusion that Congress intended to exempt racially discriminatory felon 

disenfranchisement from the coverage of the Voting Rights Act is beyond me.” 

Hayden, 449 F.3d at 365 (Calabresi, J., dissenting) (emphasis in original).

Nor do policy considerations justify this Court departing from the plain 

meaning of Section 2’s text. For example, an assertion in the Second Circuit 

opinion, Hayden, 449 F.3d at 340 (Raggi, J., concurring), hypothesizing that the 

application of Section 2’s prohibitions to New York’s felon disenfranchisement 

law may “significantly intrude on” the “orderly administration of criminal justice”

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is immaterial to the question of statutory interpretation before this Court. The

VRA broadly proscribes racial discrimination as to voting rights onlyn) That

proscription contains no implied exception to account for concerns about possible

incidental impact in other areas when faithfully applying the statute to address

discrimination in voting rights. Likewise, it is of no moment that some victims of

discrimination in the criminal justice system may also seek individual relief in

other ways, including petitions for habeas corpus. The issue before the Court is a

much simpler one of interpretation of a statute limited to voting rights.

Such efforts by the majorities in other Circuits in seeking to reach past the

plain meaning of the statute are contrary to both the Supreme Court's well-

established canons of statutory interpretation and to the clear language chosen by

Congress in adopting the VRA. As then-Judge Sotomayor explained in her dissent

when the Second Circuit considered this issue:

The duty of a judge is to follow the law, not to question its plain terms. I do 
not believe that Congress wishes us to disregard the plain language of any 
statute or to invent exceptions to the statutes it has created. . . . But even if 10

10 Washington courts have held that the disenfranchisement law. which is 
codified as part of the elections law and not the criminal code, is a non-penal law. 
See State v. Schmidt, 23 P.3d 462, 474, 143 Wash. 2d 658, 681 (Wash. 2001) 
(arguing that felon disenfranchisement is “a nonpenal exercise of the power to 
regulate the franchise.”); Fernandez v. Kinei\ 673 P.2d 191, 193, 336 Wash. App. 
210 (Wash. App. 1983) (“The statute disenfranchising convicted felons is 
sustained as a nonpenal exercise of the power to regulate the franchise. The 
purpose of the statute is to designate a reasonable ground of eligibility for voting.”).

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Congress had doubts about the wisdom of subjecting felony 
disenfranchisement laws to the results test of § 2 ,1 trust that Congress would 
prefer to make any needed changes itself, rather than have courts do so for it.

Hayden, 449 F.3d at 368 (Sotomayor, J., dissenting).

B. Even If the Court Were To Look Beyond the Statute’s 
Plain Meaning, the VRA’s Legislative History is 
Consistent with the Words of the Statute___________

Although the statute’s plain meaning controls, the legislative history does

confirm that the purpose of the VRA was to root out all racial discrimination in

voting without qualification. By 1965, Congress had documented a pervasive

history of many states’ “unremitting and ingenious defiance of the Constitution” in

denying the right to vote to racial minorities for 95 years. See Katzenbach, 383

U.S. at 309.

Demonstrating Congress’s intention to give the statute expansive reach, 

during the Senate hearings on the bill, Senators and the Attorney General discussed 

the concern that using only the term “procedure” in the statute would not be broad 

enough to cover “various practices that might effectively be employed to deny 

citizens their right to vote.” Allen, 393 U.S. 544, 566-67 (1969). For this reason. 

Congress “expanded the language to include any ‘voting qualifications or 

prerequisite to voting, or standard, practice, or procedure.’” Id. (quoting 42 U.S.C. 

§ 1973). Legislative history surrounding the VRA’s subsequent reauthorizations 

states that “|t]he revised version of Section 2 contained in this bill could be used

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effectively to challenge voting discrimination anywhere that it might be proved to 

occur.” S. Rep. No. 97-417, at 15 (1982), reprinted in 1982 U.S.C.C.A.N. 178,

192 (emphasis added). The VRA's 1982 amendments further broadened its reach 

by clarifying that discriminatory intent is not required to prove a plaintiffs claim. 

Rather, if the challenged law interacts with the surrounding social and historical 

circumstances in such a way as to result in the denial of the right to vote on 

account of race, that law violates the VRA. See Gingles, 478 U.S. at 47;n see also 

supra Section l.A.2.

There is no support whatsoever in the legislative history of Section 2 for a 

broad based exemption for discriminatory felon disenfranchisement laws. As then- 

Judge Sotomayor explained in her dissenting opinion in the Second Circuit: “The 

majority’s "wealth of persuasive evidence’ that Congress intended felony 

disenfranchisement laws to be immune from scrutiny under § 2 of the Act includes 

not a single legislator actually saying so.” Hayden, 449 F.3d at 368 (Sotomayor, J., 

dissenting) (internal citation omitted).

The majority decisions in Hayden and Simmons look not to Section 2’s 

legislative history to support an implied exemption, but rather to the legislative 11

11 In Gingles, the Supreme Court explained that “[t]he essence of a § 2 claim 
is that a certain electoral law, practice, or structure interacts with social and 
historical conditions to cause an inequality in the opportunities enjoyed by black 
and white voters to elect their preferred representatives.” 478 U.S. at 47.

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history of Section 4. See Simmons, 575 F.3d at 37-38; Hayden, 449 F.3d at 319. 

Such an approach is, inter alia, flatly inconsistent with the Supreme Court’s 

rejection of attempts to use the legislative history of one section of the VRA to 

interpret another. See Holder v. Hall, 512 U.S. 874, 883 (1994) (holding that the 

legislative history of Section 5 of the VRA should not be employed to interpret 

Section 2 of the VRA); Int 7 Bhd. o f Teamsters v. United States, 431 U.S. 324, 354 

n.39 (1977) (holding that the legislative history of a statutory provision that is not 

at bar is ‘‘entitled to little if any weight”).

And even if such an approach were proper, Section 4’s legislative history 

does not support a blanket exclusion from Section 2 for felon disenfranchisement. 

Section 2 and Section 4 have different structures and purposes within the VRA. 

Section 4 placed an outright ban on any “test or device” that limited the right to 

vote in jurisdictions with a demonstrated history of racial discrimination, which 

included “moral character tests.” The accompanying legislative history notes that 

Section 4 in itself “would not result in the proscription of the frequent requirement 

of States ... that an applicant for voting ... be free of conviction of a felony.” S. 

Rep. No . 89-162, pt. 3, at 24 (1965), reprinted in 1965 U.S.C.C.A.N. 2508, 2562. 

The language merely clarifies that felon disenfranchisement laws would not be 

considered “moral character tests” for purposes of the outright ban on “tests and 

devices” in Section 4. This language does nothing more than reinforce the idea -

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not in dispute here -  that felon disenfranchisement laws are not per se violations of 

the VRA and may be legally permissible if they do not result in racial 

discrimination. That language cannot properly be interpreted to exclude felon 

disenfranchisement from the “qualification^] or prerequisitefs]” subject to the 

results-based test of Section 2.

There is no basis for a conclusion that Congress not raising felon 

disenfranchisement laws specifically in the legislative history in 1965 or 1982 

meant that it intended to exclude discrimination resulting from Section 2. “It 

would be a strange canon of statutory construction that would require Congress to 

state in committee reports or elsewhere in its deliberations that which is obvious on 

the face of a statute.” Harrison v. PPG Indus., 446 U.S. 578, 592 (1980). Further, 

“mere silence in the legislative history cannot justify” reading a meaning into a 

statute which is not present in the text. Whitfield v. United States, 543 U.S. 209, 

216 (2005). Congress is not required to affirmatively list all possible applications 

of a statute, particularly in the case of a broad remedial statute. See Moskal v. 

United States, 498 U.S. 103, 111 (1990). Indeed, part of the reason Congress 

wrote Section 2 to be so broad is because it would be “impossible to predict the 

variety of means that would be used to infringe on the right to vote.” Johnson, 405 

F.3d at 1243 (Wilson, J„ dissenting).

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Instead, Congress’s silence supports the conclusion that it did not intend to 

exempt felon disenfranchisement laws. “Had Congress . . . intended to exclude 

this particular type of qualification from the reach of the statute, it could have done 

so explicitly.” Simmons, 575 F.3d at 52 (Torruella, J., dissenting); see also Hayden, 

449 F.3d at 348 (“[W]e are hard pressed to understand the majority’s conclusion 

that ... Congress, without comment, intended to except such an important voting 

test from [the VRA’s| protection.”) (Parker, J., dissenting).

II. THE CLEAR STATEMENT RULE IS NOT
IMPLICATED BY THE VRA

The Supreme Court’s “clear statement rule” is intended to ensure that 

Congress does not wrongfully “impose its will on the States.” Gregory v. Ashcroft, 

501 U.S. 452, 460 (1991). If Congress intends to alter the “usual constitutional 

balance” between the states and the federal government, “it must make its intention 

to do so 'unmistakably clear in the language of the statute.’” Id. at 460-61.

Contrary to the conclusion reached by the Eleventh Circuit, the clear statement 

rule does not apply in this case because: (1) Section 2 is unambiguous, broadly 

prohibiting all voting qualifications that result in the denial of the right to vote on 12

12 Although Judge Cabranes in the Second Circuit concluded that the clear 
statement rule did apply, Judges Sack and Straub did not join this portion of the 
majority opinion. Thus the clear statement rule portion of the opinion was actually 
rejected by a majority of judges on the Second Circuit. See Hayden, 449 F.3d at 
337 (Straub, J., concurring in part and concurring in judgment, Sack, J., joining).

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account of race; and (2) Section 2 is a consistent reflection of the constitutional 

balance established by the Fourteenth and Fifteenth Amendments, conferring upon 

the federal government broad power to eradicate racial discrimination in voting.

The necessary corollary to the clear statement rule is that ‘“ in the context of 

an unambiguous statutory text,’ arguments concerning whether Congress has made 

its intention clear are ‘irrelevant.’” Hayden, 449 F.3d at 357 (Parker, J., dissenting) 

(quoting Yeskey, 524 U.S. at 212). As the Supreme Court explained subsequent to 

the Gregory case, 501 U.S. at 460-61, “Gregory itself. . . noted [that] the principle 

it articulated did not apply when a statute was unambiguous.” Salinas v. United 

States, 522 U.S. 52, 60 (1997). As explained in detail above, there is no question 

that Section 2’s language and intention to root out racial discrimination in voting -  

no matter where it lies -  is unmistakably clear. See Hayden, 449 F.3d at 346 

(Parker, J., dissenting) (“Tellingly, the majority never attempts to argue that § 2(a) 

is ambiguous, instead stating that ‘we are not convinced that the use of broad 

language in [§ 2(a)] necessarily means that the statute is unambiguous with regard 

to its application to felon disenfranchisement laws.’ But this statement is not a 

finding of ambiguity.”) (quoting Hayden, 449 F.3d at 315).

Moreover, Congress did not alter the constitutional balance between the 

federal government and the states with the passage of the VRA, as must be the case 

for the clear statement rule to apply. That balance was altered long before, by the

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passage of the Fourteenth and Fifteenth Amendments. The Fourteenth and 

Fifteenth Amendments “were specifically designed as an expansion of federal 

power and an intrusion on state sovereignty.” Gregory, 501 U.S. at 468 (quoting 

City o f Rome v. United States, 446 U.S. 156, 179 (1980)); see also Mitchum v. 

Foster, 407 U.S. 225, 238 & n.28 (1972) (recognizing the “basic alteration in our 

federal system wrought in the Reconstruction era through federal legislation and 

constitutional amendment” such as the Fourteenth and Fifteenth Amendments).

The power to craft legislation addressing the conduct at issue in these Amendments 

racial discrimination as to voting rights perpetuated by the states -  was thus 

transferred from the states to the federal government nearly a hundred years before 

the passage of the VRA. See Lopez v. Monterey County, 525 U.S. 266, 282-86 

(1999).

Section 2 of the Fifteenth Amendment secures Congress’s authority to 

legislate within the intersection of the right to vote, a fundamental right, and racial 

discrimination against a suspect class. At this intersection, Congress’s authority 

was intended to be and is extremely broad. See Hayden, 449 F.3d at 360 (Parker, 

J., dissenting) (recognizing that Congress’s ability to enact prophylactic legislation

24



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under the Fifteenth Amendment is a “broad power indeed”) (quoting Tennessee v. 

Lane, 541 U.S. 509, 518 (2004)).13

For purposes of the clear statement rule, it is important to understand that 

Congress intended that its Fifteenth Amendment enforcement powers be perpetual, 

to continue to proscribe new and unanticipated racially discriminatory voting 

practices. At the time it framed the Fifteenth Amendment, Congress understood 

that expansive enforcement powers would be necessary to protect its hard-won 

gains in voting rights from erosion within the states.14 This broader effort was 

necessary because formal race discrimination in voting had been eliminated in the 

states by the time of the Fifteenth Amendment’s ratification, as a condition for re­

entry into the Union. See An Act to Provide for the More Efficient Government of 

the Rebel States, eh. 153, 14 Stat. 428, § 5 (1867). In the same way, the reach of 

Congress’s remedial legislation cannot be confined to particular voting practices 

already found to have resulted in discrimination at the time of the legislation’s

13 “[WJhile the Supreme Court has found some statutes were not an 
appropriate means of enforcing the Fourteenth Amendment, the Court has been far 
more deferential when Congress’s Fifteenth Amendment powers are at stake.” 
Northwest Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 236 
(D.D.C. 2008), rev’d sub nom. on other grounds, Northwest Austin Mun. Util. Dist. 
No. One v. Holder, 129 S. Ct. 2504 (2009).
14J. Morgan Kousser, The Voting Rights Act and the Two Reconstructions, in 
Controversies in Minority Voting: The Voting Rights Act in Perspective 138-39 
(Bernard Grofman & Chandler Davidson eds., 1992).

25



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enactment, as has been urged by majority and concurring opinions in the other 

Circuit cases. See Hayden, 449 F.3d at 330-31; Johnson, 405 F.3d at 1230-31. If 

it were, states “would always have one free bite at the apple,” and there would be 

forms of race-based voting discrimination that Congress would be unable to reach. 

Johnson, 405 F.3d at 1244 (Wilson, J., dissenting); see Hayden, 449 F.3d at 360 

(Parker, J., dissenting).

The Fifteenth Amendment empowers Congress to protect against racial 

discrimination in voting; Section 2, enacted pursuant to Congress’s Fourteenth and 

Fifteenth Amendment powers, does not alter the “usual constitutional balance” 

between the states and federal government, but instead reflects the power given to 

Congress.

26



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CONCLUSION

Amicus urges this Court to affirm its two prior decisions and hold that 

Section 2 of the VRA prohibits race discrimination in felon disenfranchisement 

laws.

Dated: June 11, 2010

DAVIS POLK & WARD WELL LLP

By: /s/Edmund Polubinski III

Daniel F. Kolb 
Edmund Polubinski III 
450 Lexington Avenue 
New York, New York 10017 
(212)450-4000

Of counsel:

Katharine M. Atlas 
Nicole Vanatko
DAVIS POLK & WARDWELL LLP 

Erika L. Wood
BRENNAN CENTER FOR JUSTICE 
AT NEW YORK UNIVERSITY 
SCHOOL OF LAW

Attorneys for Amicus Curiae 
Brennan Center for Justice at 
New York University School o f Law

27



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CERTIFICATE OF COMPLIANCE

I certify that, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B)(i) 

and Ninth Circuit Rule 29-2, the attached brief of Amicus Curiae is proportionately 

spaced, has a typeface of 14 points or more and contains 6,571 words.

Dated: June 11, 2010 /s/ Edmund Polubinski III

Edmund Polubinski III



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CERTIFICATE OF SERVICE

I hereby certify that on June 11, 2010,1 electronically filed the foregoing 

Brief of Amicus Curiae with the Clerk of the Court for the United States Court of 

Appeals for the Ninth Circuit by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and 

that service will be accomplished by the appellate CM/ECF system.

Dated: June 11,2010

/s/ Edmund Polubinski III 

Edmund Polubinski III



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No. 06-35669

UNITED STA TES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MUHAMMAD SHABAZZ FARRAKHAN, A/K/A ERNEST S. 
WALKER-BEY; AL-KAREEM SHADEED; MARCUS PRICE; 

RAMON BARRIENTES; TIMOTHY SCHAAF;
And CLIFTON BRICENO,

Plaintijfs-Appellants,

— against —

CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF 
WASHINGTON; SAM REED, SECRETARY OF STATE FOR THE 

STATE OF WASHINGTON; HAROLD W. CLARKE, DIRECTOR OF 
THE WASHINGTON DEPARTMENT OF CORRECTIONS;

And THE STATE OF WASHINGTON,

Defendants-Appellees.

APPEAL FROM A JUDGMENT OF THE UNITED STATES 
DISTRICT COURT FOR THE EASTERN DISTRICT OF 

WASHINGTON, NO. CV-96-076-RHW_________

BRIEF OF THE
COMMUNITY SERVICE SOCIETY 

AS AMICUS CURIAE
IN SUPPORT OF REVERSAL OF THE JUDGMENT BELOW

JUAN CARTAGENA 
COMMUNITY SERVICE SOCIETY 

105 East 22,ul Street 
New York, NY 10010 

212.614.5462



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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, the Community Service Society, by 

and through the undersigned counsel, makes the following disclosures:

The Community Service Society is neither a subsidiary nor an affiliate 

of a publicly owned corporation and has not issued shares of stock.

Dated: 11 June 2010
New York, New York

Juan Cartagena 
Community Service Society

2



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TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................... 4

STATEMENT OF INTEREST OF AMICUS CURIAE................................6

ARGUMENT.................................................................................................8

I. WHERE THE STATE OF WASHINGTON HAS CONDITIONED THE 
EXERCISE OF THE FRANCHISE ON THE RESULTS OF A 
DISCRIMINATORY CRIMINAL JUSTICE SYSTEM, DENYING THE 
VOTE TO THOUSANDS OF MINORITY VOTERS IN THE STATE, IT 
VIOLATES THE VOTING RIGHTS ACT. THE DISTRICT COURT 
INCORRECTLY RULED OTHERWISE BECAUSE II' FAILED TO 
DISTINGUISH PROOF OF UNLAWFUL VOTE DENIAL FROM PROOF 
OF UNLAWFUL VOTE DILUTION, THUS COMMITTING 
REVERSABLE ERROR................................................................................8

A. Section 2 of the Voting Rights Act Is Broad Enough to Encompass the 
Unique Vote Denial Claims Presented in this Challenge to Washington’s 
Felon Disfranchisement Law.......................................................................11

B. Discriminatory Felon Disfranchisement That Results in Vote Denial on 
Account of Race Violates Section 2 Even in the Absence of Proof on All 
Senate Factors. .............................................................................................15

CONCLUSION............................................................................................ 22

CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C) 
and CIRCUIT RULE 32-1 FOR CASE NO. 06-35669 .............................. 23

CERTIFICATE FOR BRIEF IN PAPER FORMAT................................  24

3



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TABLE OF AUTHORITIES 

CASES
Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)............................................... 18

Bone Shirt v. Hazeltine, 2006 WL 2404139 (8th Cir. 2006)........................ 13

Buckanaga v. Sisseton Independent School Dist., 804 F.2d 469
(8th Cir. 1986).............................................................................................. 12

Common Cause/Georgia v. Billups, 406 F.Supp. 2d 1326
(N.D. Ga. 2005)............................................................................................ 13

Farrakhan v. Gregoire, No. CV-96-076-RHW. 2006 WL 1889273
(E.D. Wash. July 7, 2006)....................................................................passim

Farrakhan v. Washington, 359 F.3d 1116 (9lh Cir.), cert, denied sub nom, 
Locke v. Farrakhan, 543 U.S. 984 (2004)............................................. 19-20

Farrakhan v. Washington, 338 F.3d 1009 (9lh Cir. 2003)..................passim

Gomez v. City o f Watsonville. 863 F.2d 1407 (9th Cir. 1988)..................... 13

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006).......................... 6, 12, 18, 21

Johnson v. Bush, 405 F.3d 1214 (11th Cir.), cert, denied,
126 S. Ct. 650 (2005)..................................................................................18

Major v. Treen, 574 F.Supp. 325 (E.E). La. 1983)..................................... 13

Smith v. Salt RiverProject Agric. Improvement & Power Dist.,
109 F.3d 586 (9lh Cir. 1997)......................................................................... 12

Thornburg v. Gingles, 478 U.S. 30 (1986).............................................9, 15

United States v. Marengo County Commission, 731 F.2d 1546
(11th Cir. 1984)........................ .................................................................... 12

4



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United States v. Blain County, 363 F.3d 897 (9,h Cir. 2004)...................... 13

STATUTES

42 U.S.C. § 1973 .................................................................................passim

42 U.S.C. § 1973(a)

42 U.S.C. § 1973(b)........................................................................9, 11

OTHER AUTHORITIES

S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177...passim

Ellen D. Katz, et al., Documenting Discrimination in Voting: Judicial 
Findings Under Section 2 o f the Voting Rights Act Since 1982, Final Report 
of the Voting Rights Initiative, 39 U. Mich. J.L. Reform 644 (2006) available
at http://sitemaker.umich.edu/votingriahts/files/finalreport.pdf.............. 8

Brief of Plaintiffs-Appellants, Farrakhan v. Gregoire, No. 06-35669, 9'h 
Cir., 1 December 2006 ..............................................................................14

5

http://sitemaker.umich.edu/votingriahts/files/finalreport.pdf


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STATEMENT OF INTEREST OF AMICUS CURIAE

The Community Service Society (“CSS”) is an independent, nonprofit 

organization that has been serving the poor by advocating for and providing 

direct services and material relief to low-income individuals and 

communities in New York for more than 160 years. Since 1987, CSS has 

represented various individuals as well as organizations seeking enforcement 

of constitutional and statutory provisions that protect the right to vote 

without undue discriminatory barriers. Realizing that participation in the 

political process is imperative to improving the quality of life in 

marginalized communities, CSS has devoted significant attention and 

resources to promote the civic engagement of the poor.

CSS has been active in addressing the adverse effects of felon 

disfranchisement on both the national and local levels. It has served as co­

counsel to individual claimants in both constitutional and Voting Rights Act 

challenges to felon disfranchisement (such as, Hayden v. Pataki, 449 F.3d 

305 (2d Cir. 2006), still pending), has provided support to similar litigation 

outside of New York, and has collaborated with numerous organizations on 

the broader issues affected by the laws that condition participation of the

6



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franchise on the results of the criminal justice system. Currently, CSS 

sponsors a discussion forum called the Reentry Roundtable where advocates 

and organizers in the field of prisoner reentry share strategies and concerns 

regarding a range of issues, including civic engagement for this population. 

For these reasons, it has a unique interest in the outcome of this litigation.

7



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ARGUMENT

I. WHERE THE STATE OF WASHINGTON HAS CONDITIONED THE 
EXERCISE OF THE FRANCHISE ON THE RESULTS OF A 
DISCRIMINATORY AND BIASED CRIMINAL JUSTICE SYSTEM, 
DENYING THE VOTE TO THOUSANDS OF RACIAL AND 
LANGUAGE MINORITIES IN THE STATE, IT VIOLATES THE 
VOTING RIGHTS ACT. THE DISTRICT COURT INCORRECTLY 
RULED OTHERWISE BECAUSE IT FAILED TO DISTINGUISH PROOF 
OF UNLAWFUL VOTE DENIAL FROM PROOF OF UNLAWFUL 
VOTE DILUTION, THUS COMMITING REVERSABLE ERROR.

Plaintiffs below have challenged Washington's felon disfranchisement 

law under Section 21 as an unlawful vote denial on account of race. Section 

2, as amended in 1982, however, has been adjudicated in far more cases 

alleging unlawful vote dilution than in vote denial claims. Ellen D. Katz, et 

al„ Documenting Discrimination in Voting: Judicial Findings Under Section 

2 o f the Voting Rights Act Since 1982, Final Report o f the Voting Rights 

Initiative.1 2 The distinction is critical in understanding how the District 

Court concluded that voter disqualification in Washington State can be

1 42 U.S.C. § 1973 (hereafter “Section 2”).
2 39 U. Mich. J.L. Reform 643, 656 (2006) available at
http://siteinak.er.umich.edu/votim>riuhts/files/l malreport.pdf (last visited 5 December 
2006). Even without counting redistricting and reapportionment vote dilution challenges 
in the litigation in the 1980s, a full 60% of all cases studied were vote dilution challenges 
to at-large elections; since 1990 nearly 76% of all Section 2 challenges were made to 
either at-large systems or redistricting/reapportionment plans. Id.

8

http://siteinak.er.umich.edu/votim%3eriuhts/files/l_malreport.pdf


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premised on a discriminatory criminal justice system and somehow, still 

survive a Section 2 challenge. Amicus respectfully submits that the District 

Court erred because it failed to appreciate this fundamental difference.

Vote dilution claims typically challenge institutional structures 

through which votes are aggregated. The choice between these structures 

directly affects the distribution of political power. Proofs in a vote dilution 

claim are substantially different than in a vote denial claim, however. For 

example, as the Supreme Court made clear in Thornburg v. Gingles3 4 

political cohesion within a protected minority group, is an indispensable 

element of proof in vote dilution claims -  otherwise it matters little how 

voters are aggregated within the structures adopted. Thus, once allowed to 

vote, racial and language minorities can successfully lodge Section 2 claims 

alleging an unlawful dilution of their political strength relative to ‘"other 

members of the electorate.”

Vote denial claims address laws, practices and procedures that directly 

exclude otherwise qualified voters from participating. By definition, vote 

denial affects the political power of the excluded group. Political cohesion 

within the protected group excluded is not critical in this context because 

irrespective of how a voter intends to associate politically, she is not allowed

3 Thornburg v. Gingles, 478 U.S. 30, 44 (1986).
4 42 U.S.C. § 1973(b).

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to vote at all. And, as noted below, other evidenee typically categorized 

under the enumerate factors that accompanied the passage of an amended 

Section 2 in 1982 (the “Senate Factors”)5 is similarly less probative, if not 

irrelevant. By automatically denying the vote to plaintiffs on account of 

race, a State is clearly denying the right to participate politically and elect 

candidates of choice irrespective of other circumstantial, and indeed, 

superfluous evidence that may also prove discrimination.

The District Court below made two critical findings that bear directly 

on Section 2’s totality of circumstances analysis it subsequently engaged in: 

it held that plaintiffs’ evidenee demonstrated “compelling evidence of racial 

discrimination and bias in Washington’s criminal justice system”6 and it 

found that the discrimination in the criminal justice sphere of government 

activity interacted with voting in a “meaningful way.”7 At this point the 

District Court erroneously required that plaintiffs provide further evidence to 

demonstrate, using the Senate Factors, that they “have less opportunity than 

other members of the electorate to participate in the political process and to

5 S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177 (hereafter “Senate 
Report”).
6 Farrakhan v. Grepo ire. 2006 WL 1889273, at *6.
7 Id.

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elect representatives of their choice.”8 Where the State of Washington has 

conditioned the exercise of the franchise on the results of a discriminatory 

and biased criminal justice system, affecting thousands of racial and 

language minorities in the state, it commits unlawful vote denial. Moreover, 

under Secton 2, proof in a vote denial case is different than proof in a vote 

dilution Section 2 case. As noted below, the Voting Rights Act requires a 

flexible approach to address discrimination in voting and the unique 

circumstances present in the use of felon disfranchisement laws in a state 

that operates a discriminatory and biased criminal justice system.

A. Section 2 of the Voting Rights Act Is Broad Enough to Encompass the 
Unique Vote Denial Claims Presented in this Challenge to Washington’s 
Felon Disfranchisement Law.

Section 2, as amended in 1982, is a broad remedial statute that permits 

a full review of all relevant evidence. Congress authorized this broad review 

when it suggested evidentiary factors in 1982, referred to as the Senate 

Factors, which serve as guidelines with no requirement to prove any specific 

or minimum number of factors. Rather than an exhaustive, hierarchical list, 

the factors are among those considered in order to establish a Section 2 

violation. The 1982 amendment to Section 2 establishes this flexibility:

8 42 U.S.C. § 1973(b).

I I



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“If as a result of the challenged practice or structure plaintiffs do not have 
an equal opportunity to participate in the political processes and to elect 
candidates of their choice, there is a violation of this section. To 
establish a violation, plaintiffs could show a variety of factors, depending 
upon the kind of rule, practice, or procedure called into question.”

This expansive language is consistent with the objective of the 1982

Amendment of generally protecting the right to vote, regardless of the

existence of intentional discrimination. In this Circuit, it is settled that the

totality of the circumstances analysis applies equally to both vote denial and

vote dilution claims. Farrakhan v. Washington. l0 What is not settled,

however, is how to apply the test to discriminatory felon disfranchisement.

Case law clearly supports this view that the legislative history 

“indicates that Congress intended §2 to apply broadly.” Smith v. Salt River 

Project Agric. Improvement Power Dist." It is well established that 

“Congress intended for Section 2 to apply as broadly as possible,” Hayden v. 

Pataki, and that “there is no formula for aggregating the factors.”

13Buckanaga v. Sisseton Independent. School Dist. ' See also, U.S. v. 

Marengo County Commission. The Courts have widely recognized that 

“ft|he Senate Report's ‘list of typical factors is neither comprehensive nor 9 10 * 12 13 14

9 Senate Report at 28.
10 338 F.3d 1009, 1015, n. II (9lh Cir. 2003).
" 109 F.3d 586, 593 (9th Cir. 1997).
12 449 F. 3d 305, 355 (2d Cir. 2006).
13 804 F.2d 469, 471 (8lh Cir. 1986).
14 731 F.2d 1546, 1574 (1 1th Cir. 1984).

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exclusive' and ‘there is no requirement that a particular number of factors be 

proved, or that a majority of them point one way or the other’” U.S. v. Blain 

County, and that “no court has ever determined how many of the factors

must be present or in what combination” Bone Shirt v. Hazeltine,'6

More to the point of this discussion, it has been held that “[t]o the 

extent that the enumerated factors are not factually relevant, they may be 

replaced or substituted by other, more meaningful factors.” Major v. 

Treen.'7 See also, Common Cause/Georgia v. Billups,15 16 17 18 (other factors 

besides the enumerated factors may also be relevant and considered). In this 

regard this Court noted that “[t]he legislative history accompanying the 1982 

Amendments acknowledged that ‘while these enumerated factors will often 

be the most relevant ones, in some cases other factors will be indicative’ of a 

Section 2 violation.” Farrakhan v. Washington.'9 finally, in Gomez v. City 

o f Watsonville, this Court clearly noted that the Senate Factors were “meant 

as a guide to illustrate some of the variables that should be considered,” and 

noted, as per the Senate Report, that the relevance of the factors would 

depend on the nature of the claim presented.20

15 363 F.3d 897, 903 (911' Cir. 2004)(citing Thornbergv. Gingles, 478 U.S. 30, 45 (1986)).
16 2006 WL 2404139 (8th Cir. 2006) (Gruender, J., concurring).
17 574 F.Supp. 325, 350 (E.D. La. 1983).
18 406 F. Supp. 2d 1326, 1374 (N.D. Ga. 2005).
1 ’ 338 F.3d at 1019 (citing Senate Report at 29).
20 8 63 F.2d 1407, 1412 (9th Cir. 1988).

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Instead of following the legislative history that accompanied the 

amendment to Section 2, or the considerable body of case law that provides 

for a flexible approach to Section 2 analysis, the District Court below 

erroneously engaged in a mechanical form of counting of Senate Factors, 

placed undue emphasis on the lack of historical, voter related discrimination 

(Factor One),21 * * 24 failed to fully assess the weight of its own finding of a 

discriminatory and biased criminal justice system (Factor Five)- and 

dismissed plaintiffs’ showing regarding the tenuousness of the policy 

justification for the challenged practice (Factor Nine).2, Amicus respectfully 

refers the Court to plaintiffs-appellants arguments in their appellate brief 

herein on Factors One and Nine and will not elaborate upon those arguments 

here.21 Instead, as noted below, the District Court’s failure to appropriately 

weigh the “compelling” evidence of a discriminatory criminal justice system 

under the unique circumstances of this case is a product of the court's failure

21 “[T|he extent of any history of official discrimination in the state or political 
subdivision that touched the right of members of the minority group to register, to vote, 
or otherwise participate in the political process.” Senate Report at 28-29.

“[TJhe extent to which members of the minority group in the state or political 
subdivision bear the effects of discrimination in such areas as education, employment and 
health, which hinder their ability to participate effectively in the political process.” Senate 
Report at 28-29. This Court has concluded that in a felon disfranchisement challenge, 
alleged discrimination in the criminal justice system is appropriately considered under 
this factor. Farrakhan v. Washington, 338 F.3d at 1020.
- “[ WJhether the policy underlying the state or political subdivision’s use of such voting 
qualification, prerequisite to voting, or standard, practice or procedure is tenuous.”
Senate Report at 28-29.
24 Brief of Plaintiffs-Appellants, I December 2006, pp. 22 to 37 and 47 to 56.

14



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to distinguish between vote denial and vote dilution claims. That failure is 

reversible error.

D. Discriminatory Felon Disfranchisement That Results in Vote Denial on 
Account of Race Violates Section 2 Even in the Absence of Proof on All 
Senate Factors.

The application of the totality of circumstances test to vote denial 

claims under Section 2 examines how the challenged practice “interacts with 

social and historical conditions to cause an inequality in the opportunities 

enjoyed by black and white voters to elect their preferred candidates.” 

Thornburg v. Gingles. This Court has already held in this litigation that 

racial bias in the state's criminal justice system is a relevant factor in a felon 

disfranchisement challenge because it may “have the effect of shifting racial 

inequality from the surrounding social circumstances into the political 

process.” Farrakhan v. Washington,* 26 Equally important, this Court has 

also noted that racial bias and discrimination in a state's criminal justice 

system that contributes to criminal convictions “clearly hinder[s| the ability 

of racial minorities to participate effectively in the political process, as 

disenfranchisement is automatic.”27

^ Thornburg v. Gingles, supra, 478 U.S. at 47, accord, Farrakhan v. Washington, supra, 
338 F.3d at 1016.
26 3 3 8 F.3d at 1020.
27 Id. at 1020.

I 5



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Amicus respectfully submits, however, that based on the factual 

findings below regarding discrimination in the criminal justice system, in 

Washington State, under these circumstances, that phenomenon is not 

“simply another relevant social and historical condition” in the analysis;28 29 

indeed, it is the primary factor.

The record below establishes that bias and discrimination in 

Washington State’s criminal justice system goes well beyond mere statistical 

disparities. The District Court accepted evidence regarding discriminatory 

“police practices, and practices in prosecutors' offices, and studies of court 

and sentencing practices” and additional evidence regarding “the existence 

of racial discrimination in law enforcement.”30 Collectively, the District 

Court characterized the evidence of discrimination as “compelling” and 

“admissible, relevant and persuasive.” Farrakhan v. Gregoire,31 All of it 

led to the finding in this record that “there is discrimination in Washington’s 

criminal justice system on account of race” and, equally important, that this

28 338 F.3d at 1020.
29 These findings came from the expert evidence provided by Prof. Robert Crutchfield. 
Farrakhan v. Gregoire, supra, 2006 WL 1889273 at *5.
30 These findings came from the expert evidence provided by Prof. Katherine Beckett. 
Farrakhan v. Gregoire, supra, 2006 WL 1889273 at *5.
31 Farrakhan v. Gregoire, supra, 2006 WL 1889273 at *6.

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discrimination interacts with the State’s felon disfranchisement law in a
'1 'y

“meaningful way.”

In effect, and in reality, Washington State has conditioned the 

qualifications for the franchise on the operation of its own discriminatory 

and biased criminal justice system, and has excluded thousands of otherwise 

eligible African-American, Latino and Native American voters in the 

process. Contrary to the District Court’s insistence,'” under these 

circumstances, where disfranchisement, and consequently, exclusion from 

political participation, is automatic, it matters little whether racial and 

language minority voters in the State suffer from the debilitating effects of 

racially polarized voting, the existence of candidate slating, the scourge of 

racial appeals in voting, or even the lack of responsiveness of their elected 

officials. And yes, it matters little on this record, whether or not, racial and 

language minorities have achieved any level of parity in the number 

minority elected officials in the State since by definition, compared to white 

members of the electorate, they are denied the vote based on a biased and 

discriminatory criminal justice system that operates in a meaningful way to 

deny their political aspirations. 32 33

32 Id-
33 Farrakhan v. Gregoire, supra, 2006 WL 1889273 at *7 (where the District Court 
counted off a number of Senate Factors which plaintiffs failed to prove, even when it 
observed the irrelevance, in some cases, of their application).

17



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Indeed, to hold otherwise, to allow a State under the Voting Rights 

Act to exclude racial and language minority voters by relying on the 

operation of a voter qualification that is found to be compellingly 

discriminatory and biased because they have achieved a form of parity in the 

number of minority elected officials and somehow enjoy an “equal 

opportunity to elect candidates of choice” as per Section 2, renders vote 

denial claims meaningless under the Voting Rights Act. Such a result is 

contrary to the plain language of Section 2 and the decades of jurisprudence 

that have made it as successful in overcoming voter discrimination for the 

last four decades, as it is today.

Admittedly, the issue of felon disfranchisement presents unique and

complex issues under Voting Rights Act and constitutional jurisprudence as

demonstrated by the long history of this case and its parallels in the New

York and Florida challenges 34 However, at its core, felon disfranchisement

cases raise one fundamental question as explained by Judge Feinberg in a

previous en banc opinion from the Second Circuit:

“While a State may choose to disfranchise some, all or none of its 
felons based on legitimate concerns, it may not do so based upon 
distinctions that have the effect, whether intentional or not, of 
disfranchising felons because of their race.”35

'J Hayden v. Pataki, 449 F.3d 305 (en banc); Johnson v. Bush. 405 F.3d 1214 (11th Cir.) 
(en banc), cert, denied, 126 S. Ct. 650 (2005).
35 Baker v. Pataki, 85 F.3d 919, 937 (2d Cir. 1996) (en banc).

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The record below contains sufficient proofs of how, at multiple levels, 

Washington State operates a criminal justice system that is racially 

discriminatory and biased -  from law enforcement decisions, to 

prosecutorial practices, to sentencing. And all of it bodes ill for all 

Washington State residents because it signals a dysfunctional criminal 

justice system based on proofs that go beyond mere statistical disparities in 

sentencing outcomes. Given the breadth of the evidence in this case now, 

amicus respectfully submits that this showing goes well beyond bare 

statistics of disproportionate impact upon minority voters that are arguably 

found in other electoral practices identified by some members of this Court 

in the opinion dissenting from the denial of the petition for rehearing en 

banc?b In that dissent, the specter of non-voting purges, Internet voting, and 

Election-Tuesday voting all falling by the wayside in a Section 2 assault 

premised exclusively on racially disparate impacts were highlighted as likely 

scenarios should the plaintiffs prevail herein. Amicus respectfully submits 

that the record below is far different now than when the dissent was 

authored, and that the breadth and depth of racial discrimination in the 36 37

36 Furrakhun v. Washington, 359 F.3d 11 16 (9th Cir.), cert, denied sub nom. Locke v. 
Farrakhan, 543 U.S. 984 (2004).
37 Id. at ll 26.

19



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court’s findings should address these concerns. Unlike any of the scenarios 

painted above, this Court now has a District Court finding that in multiple 

areas -  from arrests to sentencing -  the evidence of racial discrimination and 

bias, tested through rigorous expert analysis, completely supports the lower 

court’s finding that racial bias permeates Washington’s criminal justice 

system. Moreover, it is the very State of Washington that operates, manages 

and established both arms of governmental activity implicated in felon 

disfranchisement. That is, unlike external factors outside the control of the 

State that produce racially disparate outcomes, in felon disfranchisement the 

State controls the electoral apparatus and the criminal justice system. By 

effectively delegating decision-making on who is disqualified from voting to 

its criminal courts, the State has merely implemented an internal shift in 

governmental responsibility over a quintessential area of government 

regulation: the franchise. With that responsibility comes accountability and 

in Washington State, electoral decision-making as it affects persons with 

felony convictions otherwise qualified to vote has been vested in an arm of 

government that produces racially biased results.

In all respects the record below proves plaintiffs’ point that 

conditioning the franchise on the results of a criminal justice system that is 

broken effectively “shifting racial inequality from the surrounding social

2 0



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circumstances into the political process.”38 This “persuasive”39 proof of

criminal justice discrimination answers the very hypothetical questions

posed by Judge Parker in his dissent in Hayden v. Pataki:

“Suppose, for example, they were able to demonstrate that the 
dramatically different incarceration rates for minorities and Whites in 
New York were largely driven by drug convictions and reflected the 
manner in which law enforcement resources were deployed in the 
‘war on drugs.’ Suppose they showed that law enforcement officials 
(and task forces) concentrated resources on street-level users/dealers 
of heroin and crack cocaine in minority neighborhoods (because the 
problems were worse and arrests were easier in such areas) but, at the 
same time, devoted comparatively little attention to areas where 
Whites were abusing those same illegal drugs at the same rates (and 
powder cocaine at higher rates) [....] Neither showing is remotely 
beyond the realm of possibility in New York, and I believe this type 
of proof could constitute some evidence of a VRA violation.”40

Plaintiffs below have answered virtually all of Judge Parker’s questions in 

the affirmative as regards Washington State. For all the complex legal 

analysis that the courts have necessarily engaged in, the simple truth in 

Washington State is that African-American, Latino and Native American 

voters are denied the franchise because the State insists on conditioning 

voting on a criminal justice system that is biased and discriminates against 

them on account of race. Accordingly, the judgment of the District Court 

should be reversed.

38 3 3 8 F.3d at 1020.
39 Farrakhan v. Gregoire, supra, 2006 WL ! 889273 at *6.

Hayden v. Pataki, 449 F.3d 305, 345 (2d Cir. 2006) (en banc) (Parker, J., dissenting).

2 1



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CONCLUSION

For all the reasons noted above, the Community Service Society, as 

amicus curiae, respectfully urges this Court to reverse the judgment of the 

District Court and enter a judgment in favor of the plaintiffs-appellants’ 

claim that Washington State's felon disfranchisement law violates Section 2.

Dated: ll.!une2010 
New York, New York

Respectfully submitted,

s/ Juan Cartagena 
JUAN CARTAGENA 

General Counsel
COMMUNITY SERVICE SOCIETY 
105 East 22nd Street 
New York, NY 10010 
212.614.5462 
icartagcnafiTcssny.org

Attorney for Amicus Curiae, 
Community Service Society

22



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CERTIFICATION OF COMPLIANCE TO FED. R. APP. P. 32(a)(7)(C) 
and CIRCUIT RULE 32-1 FOR CASE NO. 06-35669

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, 
Juan Cartagena hereby certifies that the attached amicus curiae brief is 
proportionally spaced, has a typeface of 14 points, and, excluding the 
corporate disclosure statement, table of contents, table of authorities and this 
certification, contains 7,000 words or less.

Date: 11 June 2010 
New York, New York

s/ Juan Cartagena 
JUAN CARTAGENA 
Community Service Society



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CERTIFICATE OF SERVICE
U.S. Court of Appeals Docket Number(s): 06-35669

I hereby certify that I electronically filed the foregoing with the Clerk 
of the Court for the United States Court of Appeals for the Ninth Circuit by 
using the appellate CM/ECF system on June 10, 2010.

Participants in the ease who are registered CM/ECF users will be 
served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not 
registed CM/ECF users. I have mailed the foregoing document by First- 
Class mail, postage prepaid, to the following non-CM/ECF participants: 
Daniel F. Kolb, Esq.
Davis Polk & Wardwell LLP 
450 Lexington Avenue 
New York, NY 10017

Date: 11 June 2010 
New York, New York

s/ Juan Cartagena 
JUAN CARTAGENA 
Community Service Society

2 4



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CERTIFICATE FOR BRIEF IN PAPER FORMAT 
FOR CASE NO. 06-35669

I certify that this brief is identical to the version submitted 
electronically on 11 June 2010.

Date: 11 June 2010
New York, New York

s/ Juan Cartagena 
Juan Cartagena
COMMUNITY SERVICE SOCIETY

25



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No. 06-35669

In The

llntteb States; Court of Appeals for tfje iBtntf) Circuit

M u h a m m a d  S h a b a zz  F a r r a k h a n , e t  a l .,

Plaintiffs-Appellants,

v.

C h r is t in e  O . G r e g o ir e , e t  a l .,

Defendants-Appellees.

Appeal From the United S tates D istrict Court, E astern  D istrict of W ashington 
Hon. Robert H. Whaley, D istrict Judge, Case No. CV 96-0076 RHW

BRIEF OF AM ICU S CURIAE  
CONSTITUTIONAL ACCOUNTABILITY CENTER, 

IN SUPPORT OF PLAINTIFFS-APPELLANTS

Elizabeth B. Wydra 
Douglas T. Kendall 
David H. Gans
C o n s t it u t io n a l  A c c o u n t a b il it y  C e n t e r  
1200 18th Street, N.W.
Suite 1002
W ashington, D.C. 20036 
(202) 296-6889
elizabeth@ theusconstitution.org

Counsel for Am icus Curiae

mailto:elizabeth@theusconstitution.org


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STATEMENT REGARDING CONSENT TO FILE

A ppellants and Appellees have given amicus consent to file this 

brief, which is being filed consistent with the Court’s May 28, 2010 or­

der extending the deadline for filing amicus briefs to June 11, 2010.

i



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CORPORATE DISCLOSURE STATEMENT

P u rsu an t to Rule 26.1 of the Federal Rules of Appellate Procedure, 

amicus sta tes th a t it is not a publicly-held corporation, does not issue 

stock and does not have a paren t corporation. Am icus Constitutional 

Accountability Center is a non-profit 501(c)(3) organization.



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TABLE OF CONTENTS

Statem ent Regarding Consent to F ile ............................................................... i

Corporate Disclosure S ta tem en t........................................................................ ii

Table of C on ten ts..................................................................................................iii

Table of A u tho rities ..............................................................................................iv

In terest of the Am icus Curiae ............................................................................. 1

Sum m ary of A rgum ent......................................................................................... 2

A rg u m en t................................................................................................................. 3

I. THE FIFTEENTH AMENDMENT GIVES CONGRESS
BROAD ENFORCEMENT POWER TO ERADICATE 
RACIAL DISCRIMINATION IN VOTING................................ 3

II. SECTION 2 OF THE FOURTEENTH AMENDMENT DOES
NOT LIMIT CONGRESS’S POWER TO ENFORCE THE 
CONSTITUTIONAL PROHIBITION ON RACIAL 
DISCRIMINATION IN VOTING................................................ 12

A. The Fifteenth Am endm ent Superseded Section 2 of the
Fourteenth Amendment Concerning Racial 
Discrim ination in Voting..........................................................12

B. The Fifteenth Am endm ent Lacks Any Exception for
Criminal D isenfranchisem ent Laws Sim ilar To th a t Con­
tained in Section 2 of the Fourteenth A m endm ent.........19

III. APPLYING THE VOTING RIGHTS ACT TO WASHING­
TON’S FELON DISENFRANCHISEMENT LAWS IS 
APPROPRIATE IN LIGHT OF THE LONG HISTORY OF 
RACIALLY DISCRIMINATORY FELON DISENFRAN­
CHISEMENT LAWS......................................................................23

Conclusion............................................................................................................. 26

Certificate of Com pliance.................................................................................. 27

Certificate of S erv ice .......................................................................................... 28

iii



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TABLE OF AUTHORITIES

Page

Cases

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996).................................................4

Bartlett v. Strickland, 129 S. Ct. 1231 (2009)............................................. 24

City o f Boerne v. Flores, 521 U.S. 507 (1997)..............................................  11

City o f Rome v. United States, 446 U.S. 156 (1980)...................................12

Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998)..........................................26

Farrakhan u. Washington, 349 F. 3d 1116 (9th Cir. 2004).........................4

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) ..........................................23

Harvey v. Brewer, Nos. 08-17253, 17567, 2010 WL 2106623 (9th Cir. 
May, 27, 2010)...............................................................................................  22

Hunter v. Underwood, 471 U.S. 222 (1985)...........................................  15, 26

McCulloch v. M aryland, 17 U.S. (4 Wheat.) 316 (1819)................9, 10, 11

McPherson v. Blacker, 146 U.S. 1 (1982)...................................................... 16

R a tliff v. Beale, 20 So. 865 (Miss. 1896)....................................................... 25

Rice v. Cayetano, 528 U.S. 495 (2000).............................................................5

Richard v. Ramirez, 418 U.S. 24 (1974).......................................................  15

Tennessee v. Lane, 541 U.S. 509 (2004)........................................................ 11

United States v. Blaine County, Mont., 363 F.3d 897 (9th Cir. 2004).... 24

United States v. Marengo County Com m ’n, 731 F.2d 1546 (11th Cir. 
1984)..................................................................................................................24

United States v. Reese, 92 U.S. 214 (1875)...........................................passim

IV



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TABLE OF AUTHORITIES (continued)

Constitutional Provisions and Legislative M aterials

42U.S.C. § 1973(a)............................................................................................... 23

S. Rep. No. 97-417 (1982)........................................................................................5

U.S. Const.:

Amend. XIII
§ 1 ........................................................................................................................ 22
§ 2 .......................................................................................................................... 5

Amend. XIV:................................................................................................. passim

Amend. XV:.................................................................................................. passim

Cong. Globe:

39th Cong., 1st Sess. (1866):
p. 1093...........................................................................................................10
p. 1118 .....................................................................................................9, 10
p. 1292...........................................................................................................10
p. 1294...................................................................................................... 9, 10
p. 1836.............................................................................................................9
p. 2464...........................................................................................................14
p. 2468...........................................................................................................14
p. 2543...........................................................................................................14
p. 2766...................................................................................................... 7, 14
p. 2767...........................................................................................................14
p. 2768.............................................................................................................7



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TABLE OF AUTHORITIES (continued)

40th Cong., 3r(1 Sess. (1869):
p. 153.............................................................................................................17
p. 294 ........................................................................................................... 15
p. 727...............................................................................................................8
p. 743-44.......................................................................................................21
p. 744............................................................................................................ 21
p. 939 ............................................................................................................ 17
p. 980 .............................................................................................................15
p. 1012-13.................................................................................................... 21
p. 1029.......................................................................................................... 21
p. 1041.......................................................................................................... 21
p. 1305.......................................................................................................... 21
p. 1426-28.................................................................................................... 21

41st Cong., 2nd Sess. (1870):
pp. 3563, 3670...............................................................................................8

42nd Cong., 2nd Sess. (1872):
p. 124............................................................................................................ 17
p. 728.............................................................................................................. 9

43rd Cong., 1st Sess. (1874):
p. 414 .............................................................................................................. 9

43rd Cong., 2nd Sess. (1875):
p. 980 .............................................................................................................. 9

Books and Law Review Articles

1 Jam es Kent, Commentaries on American Law  (1826)...........................10

1 Joseph Story, Commentaries on the Constitution of the United States 
(1833).................................................................................................................10

v i



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TABLE OF AUTHORITIES (continued)

Akhil Reed Amar, Intratextualism , 112 Harv. L. Rev. 747
(1999)................................................................................................................... 8

George Boutwell, The Constitution of the United States at the 
End of the First Century (1895)............................................................. 17

J eff Manza & Christopher Uggen, Locked Out: Felon Disenfran­
chisement and American Democracy (2006)........................................25

Jerrell H. Shofner, The Constitution o f 1868, 41 Fla. H ist. Q. 356
(1963)................................................................................................................. 25

J ohn T. Noonan, J r., Narrowing the Nation’s Power: The Supreme 
Court Sides With the States (2002)......................................................8

Michael W. McConnell, Institutions and Interpretation, 111 HARV. L. 
Rev. 153 (1997).................................................................................................. 8

Steven A. Engel, Note, The McCulloch Theory o f the Fourteenth
A m endm ent: City of Boerne v. Flores and the Original U nderstand­
ing of Section 5, 109 Yale L.J. 115 (1999).............................................. 9

vii



INTEREST OF THE AMICUS CURIAE

The Constitutional Accountability Center (CAC) is a th ink  tank, 

public in terest law firm, and action center dedicated to fulfilling the 

progressive promise of our Constitution’s text and history. CAC works 

in our courts, through our government, and with legal scholars and the 

public to improve understanding  of the Constitution and to preserve the 

rights, freedoms, and structu ra l safeguards th a t our charter guaran ­

tees. CAC accordingly has a strong in terest in th is case and in the 

scope of Congress’s enforcement powers under the Reconstruction 

Amendments. CAC has filed amicus briefs in the U.S. Supreme Court 

in cases raising significant issues regarding the text and history of 

these Amendments, including Northwest Austin  M unicipal Util. Dist. u. 

Holder, 129 S. Ct. 2504 (2009).

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SUMMARY OF ARGUMENT

Applying the Voting Rights Act to reach felon disenfranchisem ent 

laws th a t resu lt in racial discrim ination does not jeopardize the Act’s 

constitutionality. The Fifteenth A m endm ent gives Congress broad 

power to prevent and root out racial discrim ination in voting.

Congress’s power to enforce the F ifteenth A m endm ent’s guarantee 

of the right to vote free from racial discrim ination does not stop at the 

prison door. While Section 2 of the Fourteenth Am endm ent expressly 

perm its sta tes to disenfranchise citizens based on conviction of a crime, 

Section 2 was limited by the explicit text of the Fifteenth Amendment, 

which requires racial neu tra lity  in voting laws and practices, and gives 

Congress broad power to enforce the constitutional prohibition on racial 

discrim ination in voting. Indeed, the fram ers of the F ifteenth Amend­

m ent considered and rejected proposed am endm ents to the Amend­

m ent’s language th a t would have perm itted states to disenfranchise cit­

izens convicted of felonies. Section 2 of the Fourteenth Amendm ent 

gives sta tes the option of enacting felon disenfranchisem ent laws, but 

the ratification of the Fifteenth Am endm ent gives Congress the author-

2



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ity to prevent and prohibit sta te felon disenfranchisem ent laws and 

practices th a t are racially discriminatory.

ARGUMENT

The first tim e the Court considered—and ultim ately denied— 

hearing this Voting Rights Act (VRA) case en banc, the dissent to the 

denial of rehearing en banc raised the concern th a t there is a “funda­

m ental problem with extending the VRA to reach felon disenfranchise­

m ent laws” because “[d]oing so seriously jeopardizes its constitu tional­

ity.” Farrakhan v. Washington, 359 F.3d 1116, 1121 (9th Cir. 2004) 

(Kozinski, J., dissenting from denial of reh’g en banc). Citing the “ex­

plicit constitutional recognition in § 2 of the Fourteenth  Am endm ent” of 

felon disenfranchisem ent laws, id. (quoting Baker v. Pataki, 85 F.3d 

919, 928 (2d Cir. 1996)), the dissent argued “subjecting] felon disen­

franchisem ent provisions to the ‘resu lts’ methodology of the VRA would 

pose a serious constitutional question concerning the scope of Con­

gress’s power to enforce the Fourteenth and Fifteenth Amendments. 

Id. (quoting Baker, 85 F.3d at 930).

However, the text and history of the Fourteenth and Fifteenth 

Amendm ents show th a t Congress’s power to enforce the Fifteenth

3



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A m endm ent’s guarantee of non-discrim inatory voting laws and prac­

tices extends to felon disenfranchisem ent laws—and th a t th is enforce­

m ent power is extensive and grants Congress broad discretion to carry 

out the A m endm ent’s m andate. Section 2 of the Fourteenth Amend­

ment, which allows sta tes to disenfranchise citizens convicted of a 

“crime,” does not cabin Congress’s F ifteenth Am endm ent enforcement 

power. The fram ers of the Fifteenth A m endm ent acknowledged th a t 

the text of the Am endm ent would abrogate Section 2 of the Fourteenth 

Am endm ent concerning racial discrim ination in voting, and rejected 

proposals to include an exemption for felon disenfranchisem ent laws in 

the Fifteenth Amendment.

I. THE FIFTEENTH AMENDMENT GIVES CONGRESS 
BROAD ENFORCEMENT POWER TO ERADICATE 
RACIAL DISCRIMINATION IN VOTING.

Congress enacted the Voting Rights Act pu rsuan t to its powers to 

enforce the F ifteenth A m endm ent’s guaran tee of the right to vote free 

from racial discrim ination and the Fourteenth  A m endm ent’s guarantee 

of equality. See S. Rep. No. 97-417 a t 27, 39 (1982). Both of these 

Am endm ents give Congress broad power to enforce the tex t’s promises

4



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of liberty and equality.1 For the purposes of th is case, it is ultim ately 

the text and history of the F ifteenth Am endm ent th a t controls the out­

come of the constitutional question, since the Fifteenth Am endm ent 

provides a right to vote free from discrim ination th a t was not included 

in the Fourteenth Amendment. See generally Rice v. Cayetano, 528 U.S. 

495, 522 (2000) (explaining th a t the “Fifteenth Am endm ent has inde­

pendent m eaning and force”).

The Fifteenth Am endm ent provides th a t “The right of citizens of 

the United S tates to vote shall not be denied or abridged by the United 

S tates or by any S tate on account of race, color, or previous condition of 

servitude.” U.S. CONST, amend. XV, § 1. To make this guarantee a re ­

ality, the Am endm ent then provides th a t “The Congress shall have 

power to enforce this article by appropriate legislation.” U.S. CONST, 

amend. XV, § 2. As the Supreme Court recognized ju st five years after 

the Fifteenth A m endm ent’s ratification, “the am endm ent has invested 

the citizens of the United S tates with a new constitutional right which 

is w ithin the protecting power of Congress. T hat right is exemption

1 The Thirteenth  A m endm ent’s prohibition of slavery sim ilarly includes 
a provision th a t states, “Congress shall have power to enforce this a r ti­
cle by appropriate legislation.” U.S. CONST, amend. XIII, § 2.

5



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from discrim ination in the exercise of the elective franchise on account 

of race, color, or previous condition of servitude.” United States v. 

Reese, 92 U.S. 214, 218 (1875). F urther recognizing th a t this righ t was 

one th a t had not been protected prior to the enactm ent of the Fifteenth 

Amendm ent, even by the majestic guarantees of liberty and equality in 

the Fourteenth  Amendm ent, the Court stated  tha t, “[pjrevious to this 

am endm ent, there was no constitutional guaranty  against th is dis­

crim ination: now there is.” Id.

The Fifteenth A m endm ent’s enforcement clause is virtually  iden­

tical to the enforcement clause in the Fourteenth  Amendm ent. To en­

force the Fourteenth A m endm ent’s guarantees of “due process of law” 

and “equal protection of the laws,” Section 5 of the Am endm ent states 

th a t “Congress shall have power to enforce, by appropriate legislation, 

the provisions of this article.” U.S. CONST, amend. XIV, §§ 1, 5. The 

fram ers of the Fourteenth  Amendm ent described the power to enforce 

as a “direct affirm ative delegation of power” th a t “casts upon Congress 

the responsibility of seeing to it, for the future, th a t all the sections of 

the am endm ent are carried out in good faith, and th a t no S tate in-

6



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fringes the rights of persons or property.” Cong. Globe, 39th Cong., 1st 

Sess. 2766, 2768 (1866) (Sen. Howard).

These same understandings of congressional power shaped the 

Fifteenth Am endm ent’s identically-worded enforcement clause. During 

the debates on the Fifteenth Amendment, the fram ers made clear th a t 

the A m endm ent’s Enforcement Clause, like th a t of the Fourteenth 

Amendment, gave Congress a broad “affirm ative power” to secure the 

right to vote. Cong. Globe, 40th Cong., 3rd Sess. 727 (1869) (Rep. Bing­

ham). In 1870, the same year the Fifteenth Amendm ent was ratified, 

Congress invoked the A m endm ent’s enforcement clause in support of 

voting rights legislation, reflecting the fram ers’ judgm ent th a t the Fif­

teen th  Amendm ent is “ample and full and clothes Congress with all 

power to secure the end which it declares shall be accomplished.” Cong. 

Globe, 41st Cong., 2nd Sess. 3563 (1870) (Sen. Carpenter). The Amend­

m ent’s enforcement clause, Senator Morton explained, “intended to give 

to Congress the power of conferring upon the colored m an the full en­

joyment of his right.” Id. a t 3670.

The language th a t the Fram ers used to define the scope of Con­

gress’s authority  under the Thirteenth, Fourteenth and Fifteenth
7



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Am endm ents—“appropriate legislation”—reflects a decision to give 

Congress ample berth  to make legislative choices. See, e.g., JOHN T. 

Noonan, J r., Narrowing the Nation’s Power: The Supreme Court 

Sides With the States 28-31 (2002); Akhil Reed Amar, Intratextual- 

ism, 112 Harv. L. Rev. 747, 822-27 (1999); Michael W. McConnell, In sti­

tutions and Interpretation, 111 HARV. L. Rev. 153, 178 n.153 (1997); 

Steven A. Engel, Note, The McCulloch Theory of the Fourteenth 

Amendment: City of Boerne v. Flores and the Original Understanding of 

Section 5, 109 Yale L.J. 115, 133-43 (1999). In giving Congress the 

power to enact “appropriate legislation,” the fram ers of each of the Civil 

War Amendments, including the Fifteenth, were granting Congress the 

sweeping authority  of Article I’s “necessary and proper” powers as in ­

terpreted by the famous case of McCulloch v. M aryland, 17 U.S. (4 

Wheat.) 316 (1819). Throughout Reconstruction, the fram ers repeatedly 

made the point th a t McCulloch was the m easure of congressional power 

under the enforcement clauses of the three Civil War Amendm ents. See, 

e.g., Cong. Globe, 39th Cong., 1st Sess. 1118, 1294, 1836 (1866); Cong. 

Globe, 42nd Cong., 2nd Sess. 728 (1872); Cong. Rec., 43rd Cong., 1st Sess. 

414 (1874); Cong. Rec., 43rd Cong. 2nd Sess. 980 (1875).

8



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In McCulloch, Chief Justice M arshall laid down the fundam ental 

principle determ ining the scope of Congress’s powers under the Neces­

sary and Proper Clause: “Let the end be legitim ate, let it be w ithin the 

scope of the constitution, and all means which are appropriate, which 

are plainly adapted to th a t end, which are not prohibited, but consist 

with the le tte r and sp irit of the constitution, are constitutional.” 17 

U.S. (4 Wheat.) a t 421 (em phasis added). Chief Justice M arshall used 

the word “appropriate”—the same word used in the F ifteenth Amend­

m ent’s enforcement clause—to describe the scope of congressional pow­

er no fewer than  six times. Id. a t 408, 410, 415, 421, 422, 423.2 This

2 The trea tise  w riters who were most influential a t the tim e the Fif­
teenth  Amendm ent was ratified followed McCulloch's understanding  of 
the breadth  of congressional freedom to choose “appropriate” m easures. 
The accounts of congressional power authored by Justice Story and 
Chancellor Kent, for example, were cited repeatedly during the debates 
over the Reconstruction Amendm ents. See, e.g., Cong. Globe, 39th 
Cong., 1st Sess. 1093 (1866) (statem ent of Rep. Bingham) (quoting Sto­
ry); id. a t 1118 (statem ent of Rep. Wilson) (quoting Kent); id. a t 1292 
(statem ent of Rep. Bingham) (quoting Kent); id. a t 1294 (statem ent of 
Rep. Shellabarger) (quoting Story). Story used the word “appropriate” 
to emphasize th a t Congress “m ust have wide discretion as to the choice 
of m eans.” 1 Joseph Story, Commentaries on the Constitution of the 
United States 417 (1833) (“[T]he only lim itation upon the discretion 
would seem to be, th a t the m eans are appropriate to the end. And this 
m ust naturally  adm it of considerable latitude; for the relation between 
the action and the end . . .  is not always so direct and palpable, as to

9



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This broad construction of congressional power entails a deferential role 

for judicial scrutiny when Congress has acted pursuan t to an affirm a­

tive g ran t of power, such as the affirm ative gran t of enforcement power 

in the F ifteenth Amendm ent. For the courts to review the necessity of 

Congress’s chosen m easures would be to violate the separation of pow­

ers between the Courts and Congress, “to pass the line which circum ­

scribes the judicial departm ent, and to tread  on legislative ground.” Id. 

a t 423.

In short, the Reconstruction Congress specifically drafted the en­

forcement clauses of the Thirteenth , Fourteenth, and Fifteenth 

Am endm ents to give Congress broad discretion to enact legislation th a t 

would secure the rights protected in those Amendments. Cf. Tennessee 

v. Lane, 541 U.S. 509, 561 (2004) (Scalia, J., dissenting) (noting th a t the 

Court has given McCulloch-style deference to enforcement legislation 

under all three Reconstruction Am endm ents with respect to m easures

strike the eye of every observer.”) (emphasis added). Chancellor Kent 
likewise invoked McCulloch when stressing the importance of Con­
gress’s power to adopt any m eans “which m ight be appropriate and con­
ducive” to a permissible end. 1 Jam es Kent, Commentaries on American  
Law  238 (1826) (em phasis added).

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directed against racial discrim ination).3 With respect to the Fifteenth 

Amendm ent, Congress was empowered with broad authority  to enact 

legislation th a t would secure the right to vote free from discrimination, 

and prevent the infringem ent of th a t right. See City o f Rome v. United 

States, 446 U.S. 156, 175 (1980) (“Congress’ authority  under § 2 of the 

F ifteenth Amendm ent . . . [is] no less broad than  its au thority  under the 

Necessary and Proper Clause.”). Applying the Voting Rights Act to fe­

lon disenfranchisem ent laws is w ithin this broad authority.

3 While the Supreme Court in City o f Boerne v. Flores, 521 U.S. 507 
(1997), announced a congruence and proportionality test to lim it Con­
gress’ power to enforce the broadly-worded guarantees of the Four­
teen th  Amendm ent in order to ensure th a t Congress does not invent 
new constitutional rights and trench deeply on principles of federalism, 
these same concerns do not have the same force when it comes to the 
Fifteenth Am endm ent’s focused prohibition on racial discrim ination in 
voting. Congress necessarily has more leeway in protecting against ra ­
cial d iscrim ination- the most constitutionally suspect class -  in order to 
protect the right to vote, which has always been recognized as a funda­
m ental right of the highest order. Cf. Lane, 541 U.S. a t 561 (Scalia, J., 
dissenting) (“Giving [Congress], . . more expansive scope with regard to 
m easures directed against racial discrim ination by the S tates accords to 
practices th a t are distinctly violative of the principal purpose of the 
[Civil War] A m endm ents] . . . .”).

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II. SECTION 2 OF THE FOURTEENTH AMENDMENT 
DOES NOT LIMIT CONGRESS’S POWER TO 
ENFORCE THE CONSTITUTIONAL PROHIBITION 
ON RACIAL DISCRIMINATION IN VOTING.

A. The Fifteenth Amendment Superseded Section 2 of 
the Fourteenth Amendment Concerning Racial 
Discrim ination in Voting.

Congress’s broad enforcem ent powers are in no way lessened here 

because of the mention of crim inal disenfranchisem ent in Section 2 of 

the Fourteenth  Amendm ent. The text and history of the Fourteenth 

and Fifteenth Am endm ents leaves no doubt th a t Section 2 of the Four­

teenth  Am endm ent neither qualifies the Fifteenth A m endm ent’s sub­

stantive prohibition on racial discrim ination in voting nor lim its Con­

gress’s sweeping authority  to enforce, through prophylactic m easures 

like the Voting Rights Act, the Fifteenth Amendm ent. On the contrary, 

while Section 2 of the Fourteenth  Am endm ent perm itted sta tes to dis­

enfranchise African-American voters, the F ifteenth Am endm ent flatly 

prohibited racial discrim ination in voting, and gave Congress broad au ­

thority  to enforce this new constitutional command.

Section 2 of the Fourteenth  Amendm ent, in relevant part, reads as 

follows:

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[W]hen the righ t to vote a t any election for the choice of 
electors for P resident and Vice President of the U nited 
States, Representatives in Congress, the Executive and J u ­
dicial officers of a State, or the members of the Legislature 
thereof, is denied to any of the male inhabitan ts of such 
State, being twenty-one years of age, and citizens of the 
U nited States, or in any way abridged, except for partic ipa­
tion in rebellion, or other crime, the basis of representation 
therein  shall be reduced in the proportion which the num ­
ber of such male citizens shall bear to the whole num ber of 
male citizens twenty-one years of age in such State.

U.S. Const, amend. XIV, § 2.

Section 2 of the Fourteenth Amendm ent was principally concerned 

not with crim inal disenfranchisem ent laws at all, but w ith creating a 

new procedure for apportioning representatives to Congress to account 

for the fact th a t the freed slaves were now citizens and had to be 

counted as full persons, but still lacked the right to vote. With the 

Three-Fifths Clause a nullity, the fram ers were concerned th a t counting 

the newly freed slaves as full persons would give the Southern States 

far more congressional representation than  they had before they se­

ceded from the Union, even “while at home” the newly freed slaves “are 

counted politically as nothing.” Cong. Globe, 39th Cong., 1st Sess. 2464 

(1866) (Rep. Thayer); id. a t 2468 (Rep. Kelley) (“Shall the pardoned re ­

bels of the South include in the basis of representation four million peo-

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pie to whom they deny political rights, and to no one of whom is allowed 

a vote in the selection of a Representative?”).

Section 2 put the S tates to a choice. In the words of Sen. Jacob 

Howard, a member of the Jo in t Committee on Reconstruction th a t was 

responsible for drafting the Fourteenth Amendment, Section 2 left “the 

right to regulate the elective franchise . . . w ith the S tates,” bu t imposed 

a penalty of reduced congressional representation on S tates th a t “per­

sist in refusing suffrage to the colored race.” Cong. Globe, 39th Cong., 1st 

Sess. 2766, 2767 (1866); id. a t 2543 (Rep. Bingham) (“If [a] . . . S tate 

discrim inates against her colored population as to the elective franchise 

. . . she loses to th a t extent her representation in Congress.”).4

4 As Rep. Bingham ’s and Sen. Howard’s comments reflect, the Recon­
struction fram ers’ central concern was lim iting the size of the congres­
sional delegation of formerly slaveholding sta tes th a t continued to deny 
African Americans the righ t to vote. For th a t reason, the fram ers “were 
prim arily concerned with the effect of reduced representation upon the 
States, ra th e r than  with the two forms of disenfranchisem ent which 
were exempted from th a t consequence.” Richardson u. Ramirez, 418 
U.S. 24, 43 (1974). While Richardson  held th a t Section 2’s exemption 
for felon disenfranchisem ent laws m ust be given some effect, and con­
cluded th a t the Constitution imposes no per se ban on felon disenfran­
chisem ent laws, id. a t 55, the Supreme Court has since held th a t Ҥ 2 
was not designed to perm it . . . purposeful racial discrim ination . . . .” 
Hunter v. Underwood, 471 U.S. 222, 233 (1985).

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Section 2, as it re la tes to racial discrim ination in voting, was su ­

perseded two years la ter with the passage and ratification of the Fif­

teen th  Amendment. The Fifteenth Am endm ent replaced Section 2’s 

“perm it but penalize” approach with an across-the-board ban on racial 

discrim ination in voting, a change th a t was necessary because the Four­

teen th  Am endm ent did not protect the right to vote. See Cong. Globe, 

40th Cong., 3rd Sess. 980 (1869) (Sen. Frelinghuysen) (pointing to Sec­

tion 2 to explain the need for “a fu rther am endm ent” to have “our rights 

. . . w ritten in the Constitution”); id. a t app. 294 (Rep. Higby) (finding 

the Fifteenth Am endm ent a “great im provem ent” over Section 2 of the 

Fourteenth because it “will secure to the citizen the political rights to 

which he is entitled . . . .”).

The Fifteenth Am endm ent barred sta tes from denying the right to 

vote to African Americans on account of race outright, a remedy incom­

patible with Section 2’s penalty of excluding voters disenfranchised on 

account of race from the count of the num ber of persons residing in the 

s ta te .5 As George Boutwell, a member of the Jo in t Committee on Re­

5 To be sure, Section 2 m ight still have independent bite as applied to 
sta tu tes th a t denied the vote to citizens for nonracial reasons, see, e.g.,

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construction and one of the principal drafters of the F ifteenth Amend­

m ent, la ter pu t it:

By virtue of the F ifteenth Am endm ent the last sentence of 
section two of the Fourteenth  Am endm ent is inoperative 
wholly, for the Suprem e Court . . . could not do otherwise 
than  declare a S tate s ta tu te  void which should d isenfran­
chise any of the citizens described, even if accompanied 
with the assent of the S tate to a proportionate loss of rep ­
resentative power in Congress.

George Boutwell, The Constitution of the United States at the 

End of the First Century 389 (1895).6 Indeed, during the debates on 

the Amendm ent, opponents of the F ifteenth Am endm ent repeatedly 

complained about the fundam ental inconsistency between the Four­

teenth  A m endm ent’s Section 2 and the F ifteenth Amendm ent, noting

McPherson v. Blacker, 146 U.S. 1, 38-39 (1892) (rejecting argum ent th a t 
section 2 conferred a right to vote for presidential electors), but as to ra ­
cial discrim ination in voting, Section 2 was a dead le tter after the pas­
sage of the Fifteenth Amendm ent.
6 In fact, in December 1869, before the S tates ratified the Fifteenth 
Amendm ent, Rep. Jam es Garfield successfully persuaded Congress to 
postpone enforcement of Section 2’s penalty provision until the next 
census, noting the irreconcilable differences between the proposed Fif­
teenth  Am endm ent and the Fourteenth A m endm ent’s Section 2. “If we 
should adjust the apportionm ent before the fifteenth am endm ent pre­
vails, then  when it does prevail all the S tates entitled to an increase 
under the fifteenth am endm ent will be deprived of th a t increase during 
the whole of the coming ten  years.” Cong. Globe, 41st Cong., 2nd Sess. 
124 (1869).

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th a t the Fifteenth Am endm ent “propose[s] to undo the work ju st com­

pleted in the adoption of a constitutional am endm ent, expressly leaving 

the question of suffrage to the action of each S tate ,” Cong. Globe, 40th 

Cong., 3rd Sess. app. 153 (1869) (Sen. Doolittle), and “virtually  contra­

dicts . . . th a t constitutional am endm ent.” Id. a t 939 (Sen. Corbett).

Not surprisingly, the Supreme Court quickly recognized the 

change the Fifteenth Amendm ent wrought. In United States v. Reese, 

92 U.S. (2 Otto) 214 (1875), the Court explained th a t the “am endm ent 

has invested the citizens of the United S tates with a new constitutional 

right which is within the protecting power of Congress.” Id. a t 218. 

“Before its adoption . . . [i]t was . . . w ithin the power of a S tate to ex­

clude citizens of the United S tates from voting on account of race . . . .  

Now it is not.” Id. The dissent agreed, noting the stark  differences be­

tween the Fourteenth Amendm ent and the F ifteenth Amendment. 

While Section 2 of the Fourteenth Amendm ent perm itted “the late sla­

veholding S tates . . .  to exclude all its colored population from the right 

of voting, a t the expense of reducing its representation in Congress,” the 

Fifteenth Am endm ent “expressly negatived” the “power of any S tate to

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any S tate to deprive a citizen of the right to vote on account of race . . 

Id. a t 247-248 (Hunt, J., dissenting).

This constitutional text and history dem onstrates th a t Section 2 of 

the Fourteenth  Am endm ent does not lim it Congress’s power to enforce 

the Fifteenth A m endm ent’s prohibition on racial discrim ination in vot­

ing. The Fourteenth A m endm ent did not lim it a t all the authority  of 

sta tes to disenfranchise voters on account of race, and was superseded 

when the American people ratified the F ifteenth Amendm ent. Conse­

quently, Section 2 of the Fourteenth A m endm ent does not lim it Con­

gress’s power to enforce the Fifteenth Amendm ent, which was specifi­

cally designed to ban racial discrim ination in voting, “investing] the 

citizens of the United S tates w ith a new constitutional right . . . w ithin 

the protecting power of Congress.” Reese, P2 U.S. a t 218. The Fifteenth 

Am endm ent radically altered the Fourteenth, and should be read ac­

cording to its plain term s.

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B. The Fifteenth Amendment Lacks Any Exception  
for Criminal Disenfranchisem ent Laws Similar To 
that Contained in Section 2 of the Fourteenth  
Amendment.

Not only did the F ifteenth Am endm ent specifically supersede Sec­

tion 2 of the Fourteenth Am endm ent concerning racial discrim ination in 

voting, bu t the fram ers of the F ifteenth Amendm ent declined to carve 

out an exception for crim inal disenfranchisem ent sim ilar to th a t found 

in Section 2 of the Fourteenth Amendm ent. During debates over the 

Fifteenth Amendment, the Reconstruction fram ers consistently rejected 

proposed am endm ents th a t would have codified in the Fifteenth 

Am endm ent an exception for felon disenfranchisem ent laws. Although 

the fram ers of the Fifteenth Am endm ent plainly knew how to draft such 

an exception, the fram ers insisted on, and enacted, a sweeping ban on 

racial discrim ination in voting w ithout exceptions.

During the debates, a central issue dividing the Republican pro­

ponents of the Fifteenth Amendm ent was w hether to prohibit racial dis­

crim ination in voting (and/or officeholding), or to provide a broader 

guarantee of equal voting rights th a t extended beyond racial discrimi­

nation. But w hether the A m endm ent’s basic m andate was limited to

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racial discrim ination in voting or more broadly guaranteed the right to 

vote, the 40th Congress th a t wrote the F ifteenth Am endm ent repeatedly 

voted down proposals to carve out an exemption for any sort of crim inal 

disenfranchisem ent laws.

D uring the debate in the Senate, for example, Republicans over­

whelmingly rejected proposals th a t would have perm itted racially dis­

crim inatory crim inal disenfranchisem ent laws. For example, the Sen­

ate rejected an am endm ent, offered by Senator Doolittle, th a t would 

have added to the existing version banning racial discrim ination in vot­

ing and office-holding a carve out for crim inal disenfranchisem ent laws. 

Senator Doolittle’s proposal provided:

The right of citizens of the United S tates to vote and 
hold office shall not be denied or abridged by the United 
States, or by any State, on account of race, color, or previ­
ous condition of servitude; nor shall any citizen be so de­
nied, by reason of any alleged crime, unless duly convicted 
thereof according to law.

Cong. Globe, 40th Cong., 3rd Sess. 1305 (1869). The Senate re ­

jected the am endm ent by a vote of 30-13. Id.

In both the Senate and the House, members of Congress proposed 

adding exemptions for felon disenfranchisem ents as part of efforts to

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expand the reach of constitutional protection for the right to vote be­

yond race. For example, early in the House debates, Rep. Shellabarger 

offered an am endm ent th a t would have guaranteed to

any male citizen of the U nited S tates of the age of twenty- 
one years, or over . . .  an equal vote a t all elections in the 
S tate in which he shall have such actual residence as shall 
be prescribed by law, except to such as have engaged or 
may hereafter engage in insurrection or rebellion against 
the United States, and to such as shall be duly convicted of 
treason, felony, or other infamous crime.

Cong. Globe, 40th Cong., 3rd Sess. 744 (1869). The am endm ent was 

rejected by a vote of 126-61. Over the course of the debates, num erous 

other similarly-worded am endm ents th a t would have protected the 

equal right to vote while exem pting felon disenfranchisem ent laws, too, 

were defeated or w ithdraw n. See, e.g., Cong. Globe, 40th Cong., 3rd Sess. 

74 3-44; 1012-13, 1029, 1041, 1426-28 (1869). In short, the fram ers of 

the Fifteenth Am endm ent rejected proposals, in w hatever form they 

were offered, to create an exemption sim ilar to the one contained in Sec­

tion 2 of the Fourteenth Am endm ent th a t would exempt felon disen­

franchisem ent laws from the Fifteenth Am endm ent’s ban on racial dis­

crim ination in voting.

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The s ta rk  differences between the text of the Fourteenth and Fif­

teen th  Am endm ents foreclose reading an exception for felon disenfran­

chisem ent laws into the text of the Fifteenth Am endm ent th a t would 

lim it Congress’s power to prohibit racially discrim inatory felon disen­

franchisem ent laws. As th is Court has recently observed, the fram ers of 

the Civil W ar Amendm ents were “quite capable” of writing broad excep­

tions into the Constitution’s new constitutional guarantees to perm it 

crim inal disenfranchisem ent when they “intended to do so.” Harvey v. 

Brewer, Nos. 08-17253, 17567, 2010 WL 2106623, a t *7 (9th Cir. May, 

27, 2010) (O’Connor, Ret. J .).7 While Section 2 of the Fourteenth 

A m endm ent includes a broad exemption for felon disenfranchisem ent 

laws, the fram ers of the F ifteenth Am endm ent explicitly rejected a sim i­

la r exemption. The Fifteenth A m endm ent’s text and history shows th a t 

the fram ers did not w ant to carve out perm ission for sta tes to enact ra ­

7 The Thirteen Amendment, too, contains a “crime” exception, perm it­
ting sta tes to sentence persons convicted of a crime to forced labor. U.S. 
CONST, amend. XIII, § 1. While this exception sanctions forcing prison­
ers to work, it does not lim it Congress’s power under the Fourteenth 
A m endm ent to prohibit racially discrim inatory work assignm ents. Cf. 
Gates v. Collier, 501 F.2d 1291, 1299 (5th Cir. 1974) (holding th a t seg­
regated work details for prisoners violated the Equal Protection 
Clause).

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cially discrim inatory felon disenfranchisem ent. Accordingly, the plain 

m eaning of the F ifteenth A m endm ent unquestionably invests Congress 

with broad authority  to prohibit all forms of racial discrim ination in vot­

ing, including racially discrim inatory felon disenfranchisem ent laws.

III. APPLYING THE VOTING RIGHTS ACT TO 
WASHINGTON’S FELON DISENFRANCHISEMENT 
LAWS IS APPROPRIATE IN LIGHT OF THE LONG 
HISTORY OF RACIALLY DISCRIMINATORY FELON 
DISENFRANCHISEMENT LAWS.

Section 2 of the Voting Rights Act, prohibits sta te  and local gov­

ernm ent from using any “voting qualification . . .  in a m anner which re­

sults in a denial or abridgem ent of the right of any citizen . . .  to vote on 

account of race or color,” 42 U.S. C. § 1973(a), in order to “end discrim i­

natory trea tm en t of m inorities who seek to exercise one of the most 

fundam ental rights of our citizens: the right to vote.” Bartlett v. S trick­

land, 129 S. Ct. 1231, 1240 (2009) (plurality opinion of Kennedy, J.); see 

also United States v. Blaine County, Mont., 363 F.3d 897, 909 (9th Cir. 

2004) (holding th a t the Act’s results test was a constitutional m eans of 

“‘securing] the right to vote and . . . eliminat[ing] the effects of past 

purposeful discrim ination.”’) (quoting United States u. Marengo County 

Comm n, 731 F.2d 1546, 1557 (11th Cir. 1984)).

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Applying the Act’s nationwide prohibition on discrim inatory de­

nial of the right to vote to felon disenfranchisem ent s ta tu tes is an ap­

propriate use of Congress’s power to enforce the F ifteenth Amendment. 

S tates have a long history of enacting felon disenfranchisem ent laws in 

order to bar African Americans from voting, and these sta tu tes continue 

to have th is effect today, operating in tandem  with racial discrim ination 

in the crim inal justice system.

During and after Reconstruction, ju st as African Americans were 

gaining the franchise, sta te  governm ents tu rned  to felon d isenfran­

chisem ent s ta tu tes to deny the right to vote. Between 1865-1900, eigh­

teen sta tes enacted or expanded felon disenfranchisem ent sta tu tes, in ­

cluding virtually  all the Southern sta tes as well as W ashington State, 

which included a felon disenfranchisem ent provision in its first S tate 

Constitution, adopted in 1899. See JEFF Manza & CHRISTOPHER UGGEN, 

Locked Out: Felon Disenfranchisement and American Democracy 

50 (2006).

Throughout the South, sta tes did not try  to hide the racial anim us 

behind felon disenfranchisem ent sta tu tes, bu t ra th e r trum peted the fact 

th a t such sta tu tes would bar African Americans from voting. In Flor­

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ida, for example, the 1868 S tate Constitution provided a greatly ex­

panded felon disenfranchisem ent law, a part of w hat one convention 

leader called a plan to keep Florida from being “niggerized.” See Jerrell 

H. Shofner, The Constitution o f 1868, 41 Fla. Hist. Q. 356, 374 (1963). 

In Mississippi, the 1890 Constitution added a sweeping crim inal disen­

franchisem ent provision designed to bar African Americans from voting. 

As the M ississippi Supreme Court boasted in 1896, “the convention 

swept the circle of expedients to obstruct the exercise of the franchise by 

the negro race,” using crim inal disenfranchisem ent to “discriminate]] 

against its characteristics and the offenses to which its w eaker mem­

bers were prone.” R a tliff v. Beale, 20 So. 865, 868 (Miss. 1896); see also 

Cotton u. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (noting provision 

“was enacted in an era in when southern sta tes discrim inated against 

blacks by disenfranchising convicts for crimes tha t, it was thought, were 

committed prim arily by blacks”). Likewise, in 1901, Alabama, too, ex­

panded the crim inal disenfranchisem ent provision of the S tate Consti­

tution in order to keep African Americans off the voting rolls. As the 

Supreme Court observed in striking this provision, “[t]he delegates to 

the all-white convention were not secretive about their purpose . . . .

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[Z]eal for w hite supremacy ran  ram pant a t the convention.” Hunter v. 

Underwood, 471 U.S. 222, 229 (1985).

In light of this history and the continuing discrim inatory effect fe­

lon disenfranchisem ent s ta tu tes have when operating in tandem  with 

racial discrim ination in the crim inal justice system, see Plaintiffs- 

A ppellants’ Brief a t pp. 2, 9-16, the Fifteenth Amendm ent unquestiona­

bly gives Congress authority  to prohibit crim inal disenfranchisem ent 

s ta tu tes th a t resu lt in a discrim inatory denial of the right to vote.

CONCLUSION

For the foregoing reasons, amicus respectfully request th a t the 

Court reverse the ruling of the D istrict Court.

Respectfully subm itted,

is/ Elizabeth B. Wvdra 
Elizabeth B. W ydra 
Douglas T. Kendall 
David H. Gans
Constitutional Accountability 
Center
1200 18th Street, N.W.
Suite 1002
W ashington, D.C. 20036 
(202) 296-6889
elizabeth@ theusconstitution.org 
Counsel for Am icus Curiae

Dated: Ju n e  11, 2010
26

mailto:elizabeth@theusconstitution.org


Case: 06-35669 06/11/2010 Page: 35 of 36 ID: 7369698 DktEntry:119

CERTIFICATE OF COMPLIANCE

I hereby certify th a t this brief complies with the type-volume lim i­

tation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,106 words, ex­

cluding the parts of the brief exempted by Fed. R. App. P. 

32(a)(7)(B)(iii).

I fu rther certify th a t the attached amicus brief complies w ith the 

typeface requirem ents of Fed. R. App. P. 32(a)(5) and the type style re ­

quirem ents of Fed. R. App. P. 32(a)(6), because it has been prepared in 

a proportionally spaced typeface using Microsoft Word 2007 14-point 

Century Schoolbook font.

Executed this 11th day of June, 2010.

Is/ Elizabeth B. Wvdra 
Elizabeth B. Wydra

Counsel for amicus curiae 
Constitutional Accountability Center

27



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CERTIFICATE OF SERVICE

I hereby certify th a t I electronically filed the foregoing with the 

Clerk of the Court for the U nited S tates Court of Appeals for the N inth 

Circuit by using the appellate CM/ECF system on June 11, 2010.

I certify th a t all partic ipants in the case are registered CM/ECF 

users and th a t service will be accomplished by the appellate CM/ECF 

system.

Executed this 11th day of June, 2010.

Is/ E lizabeth B. Wydra 
Elizabeth B. Wydra

Counsel for amicus curiae 
Constitutional Accountability Center

28



No. 06-35669
Urnteb States Court of Appeals 

for tfje jSintf) Circuit

M U H A M M A D  S H A B A Z Z  F A R R A K H A N ,  A/K/A E R N E ST  S. W A L K E R -B E Y ;  
A L -K A R E E M  SH A D E E D ; M A R C U S  PR ICE; R A M O N  B A R R IE N T E S ; 

T IM O T H Y  SC H A A F ; A N D  C L IF T O N  BR1CENO,

Plaintiffs-A ppe Hants,

C H R IST IN E  O. G REG O IRE, G O V E R N O R  OF TH E  ST A T E  OF W A SH IN G T O N ;
S A M  REED , S E C R E T A R Y  OF ST A T E  FOR T H E  ST A T E  OF W A SH IN G T O N ; H A R O L D  W. C L A R K E ,  

D IR E C T O R  OF T H E  W A SH IN G T O N  ST A T E  D E P A R T M E N T  OF C O R R EC T IO N S;
A N D  T H E  ST A T E  OF W A SH IN G T O N ,

Defendants-A ppellees.

APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF WASHINGTON, NO. CV-96-076-RHW 

THE HONORABLE ROBERT H. WHALEY, JUDGE PRESIDING

BR IEF  SU BM ITTED  ON BEH ALF OF LEAD ING  CR IM IN O LO G ISTS

A LFRED  BLUMSTEIN, JOHNNA CHRISTIAN, TODD R. CLEAR, CAV1T COOLEY, 
FRANC IS T. CULLEN, M A LC O LM  FEELEY, DAV ID  GARLAND, DAVID  F. GREENBERG, 
M. KAY  HARRIS, PH ILIP  HARRIS, M IC H A EL  ISRAEL, LAUREN KRIVO, JEFF MANZA, 

CANDACE MCCOY, ALAN  M OBLEY, JOHN M O LLENKO PF, JOAN PETERSILIA, 
JAM ES SHORT, JONATHAN SIMON, JERO M E H. SKO LN ICK, JER EM Y  TRAVIS, 

BRUCE WESTERN, AND DEANNA W ILK IN SO N

AS A M I C I  C U R I A E  IN SUPPORT OF APPELLANTS 
AND IN SUPPORT OF REVERSAL

Of Counsel:
Marianne Koh, Esq.
W. Barton Patterson, Law Clerk

Derek S. Tarson, Esq. 
DEBEVOISE & PLIMPTON LLP 
919 Third Avenue 
New York, NY 10022 
(212) 909-6000



T A B LE  OF CONTENTS

TABLE OF CONTENTS.................................................................................. i

TABLE OF AUTHORITIES.......................................................................... iii

INTRODUCTION AND IDENTITY AND INTEREST OF
THE AMICI CURIAE...............................................................................1

A. IDENTITY OF THE PROPOSED AMICI CURIAE............................2
B. INTEREST OF THE PROPOSED AMICI CURIAE............................2

I. SWEEPING DISENFRANCHISEMENT OF FELONS
CANNOT BE JUSTIFIED AS A PUNITIVE MEASURE 
BECAUSE IT DOES NOT SERVE ANY OF THE 
LEGITIMATE GOALS OF PUNISHMENT..........................................5

A. Incapacitation or Prevention Is Not a Valid Justification for 
Felon Disenfranchisement Because the Public Is Not Planned
by Felons Voting.................................................................................... 5

1. Disenfranchisement Does Not Logically Prevent Electoral
Fraud................................................................................................... 6

2. The State Cannot Prevent Individuals from Voting for Fear of
How They Might Vote........................................................................9

B. Deterrence Does Not Justify Felon Disenfranchisement...................  11
C. Retribution Is Not a Justification for Stripping Felons of the

Right to Vote Because Blanket Disenfranchisement Renders 
Punishment Disproportionate............................................................... 13

D. Rehabilitation Is Not Served - And Is Actually Impeded - by
Disenfranchisement.............................................................................. 16

II. FELON DISENFRANCHISEMENT CANNOT BE
JUSTIFIED AS A REGULATION BECAUSE IT DOES 
NOT RATIONALLY RELATE TO MAINTAINING 
ELECTORAL INTEGRITY.................................................................. 19 III.

III. LOCKE’S SOCIAL CONTRACT THEORY DOES NOT
JUSTIFY DENYING FUNDAMENTAL RIGHTS TO 
OFFENDERS......................................................................................... 21

i



A. Societal Offenses Do Not Extinguish Fundamental Rights and 
Blanket Application of Social Contract Theory Is Irreconcilable
with Recognized Constitutional Rights of Offenders........................ 22

B. The Social Contract Theory Demands a Degree of 
Proportionality and Rationality that Blanket
Disenfranchisement Does Not Possess.............................................. 23

IV. TIIE DISTRICT COURT ERRED IN FINDING THAT 
EONGSTANDING ACCEPTANCE AND 
CONSTITUTIONAL ACKNOWLEDGMENT OF 
FELON DISENFRANCHISEMENT LAWS MITIGATES 
THE TENUOUSNESS OF THE POLICY BEHIND
THEM................................................................................................... 25

CONCLUSION.............................................................................................29

ATTACHMENT A A-l



Cases

Atkins v. Virginia, 536 U.S. 304 (2002).......................................................14
Carrington v. Rash, 380 U.S. 89 (1965)............................................ 9, 10, 11
Dillenburg v. Kramer, 469 F.2d 1222 (9th Cir. 1972).......................... 10, 21
Dunn v. Blumstein, 405 U.S. 330 (1972)...........................................  8, 11,20
Ewing v. California, 538 U.S. 11 (2003)...................................................... 5
Fernandez v. Kiner, 673 P.2d 191 (Wash. Ct. App. 1983).........................  19
Goosby v. Town Bd. o f Town o f Hempstead, 180 F.3d 476 (2d Cir.

1999).......................................................................................................... 26
Green v. Board o f Elections, 380 F.2d 445 (2d Cir. 1967)............... 9, 10, 21
Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006)........................... 4, 26, 27, 28
Hayes v. Williams, 341 F. Supp. 182 (S.D. Tex. 1972)...............................  10
Hirst v. United Kingdom, [20041 ECHR 121 (Eur. Ct. H.R.)..................... 26
Hunter v. Undenvood, 471 U.S. 222 (1985)................................................28
Kramer v. Union Free School District, 395 U.S. 621 (1969)..................... 11
Lawrence v. Texas, 539 U.S. 558 (2003)...................................................... 27
Reynolds v. Sims, 377 U.S. 533 (1964).........................................................10
Richardson v. Ramirez, 418 U.S. 24 (1974).................................................28
Romerv. Evans, 517 U.S. 620(1996)......................................................9, 10
Sauve v. Canada, [2002] 3 S.C.R. 519 (Canada).......... 10, 11, 13, 17, 18, 23
State v. Ward, 869 P.2d 1062 (Wash. 1994).................................................19
Turner v. Safley, 482 U.S. 78 (1987)............................................................22
United States v. Blaine County, 363 F.3d 897 (9th Cir. 2004).................... 26
Weems v. United States, 217 U.S. 349 (1910)..............................................14
Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986)........................................10
Williams v. Dallas, 734 F. Supp. 1317 (N.D. Tex. 1990)........................... 26
Woodruff v. Wyoming, 49 F. App'x 199 (10th Cir. 2002)........................... 10

T A B LE  OF A U TH O R IT IES

iii



Constitutional Provisions

U.S. Const, amend. XIII................................................................................ 27
U.S. Const, amend. XIV................................................................................27
Wash. Const. Art VI § 3 .......................................................................1,9, 21
Statutes

Voting Rights Act, 42 U.S.C. § 1973...................................... 1, 4, 25, 28, 29
Wash. Rev. Code § 2.36.070(5).................................................................... 13
Wash. Rev. Code § 29A.84.050......................................................................7
Wash. Rev. Code § 29A.84.120......................................................................7
Wash. Rev. Code § 29A.84.540......................................................................7
Wash. Rev. Code § 29A.84.640......................................................................7
Wash. Rev. Code § 9.94A.010...............................................................3, 4, 5
Wash. Rev. Code § 9.94A.555 ....................................................................  14
Wash. Rev. Code § 9A.49.020.......................................................................8
Wash. Rev. Code § 9A.56.083.......................................................................8
Wash. Rev. Code § 9A.64.010.......................................................................8
Wash. Rev. Code § 9A.64.020.......................................................................8
Other Authorities

A BA Criminal Justice Standards on Collateral Sanctions and
Discretionary Disqualification o f Convicted Persons, available at 
http://www.abanet.Org/leadership/2003/journal/l 01 a.pdf....................... 17

Ewald, Alec, Punishing at the Polls (2003), available at 
http://www.demos-usa.org/publ09.cfm............................................. 15, 22

Exodus 21:23-25 ............................................................................................ 14
Itzkowitz, Howard & Oldak, Lauren, Note: Restoring the Ex- 

Offender’s Right To Vote: Background and Developments, 11 Am.
Crim. L. Rev. 721 (1973)...................................................................  14, 16

Karlan, Pamela S., Convictions and Doubts: Retribution,
Representation, and the Debate Over Felon Disenfranchisement,

IV

http://www.demos-usa.org/publ09.cfm


Stanford Law School, Public Law Working Paper No. 75 (2004), 
available at http://papers.ssrn.com/abstract=484543...............................  11

Locke, John, Two Treatises o f Government................................................ 22
Mauer, Marc, Felon Voting Disenfranchisement: A Growing 

Collateral Consequence o f Mass Incarceration, 12 Fed. Sentencing 
Rep., Mar./Apr. 2000 ................................................................................ 15

Note: The Disenfranchisement o f Ex-Felons: Citizenship, Criminality, 
and the “Purity o f the Ballot Box, ” 102 Harv. L. Rev. 1300 (1989)......... 8

S. Rep. No. 97-417 (1982), reprinted in 1982 U.S.C.C.A.N. 177........... 1,26
Thompson, Mark E., Comment: Don’t Do The Crime I f  You Ever 

Intend To Vote Again: Challenging the Disenfranchisement o f 
Ex-Felons as Cruel and Unusual Punishment, 33 Seton Mall L. Rev.
167 (2002).................................................................................................... 8

Travis, Jeremy, Invisible Punishment: An Instrument o f Social 
Exclusion, in Invisible Punishment: The Collateral Consequences o f 
Mass Imprisonment (Marc Mauer & Meda Chesey-Lind eds., 2002).....  12

Uggen, Christopher & Manza, Jeff, Lost Voices: The Civic and 
Political Views o f Disenfranchised Felons, in Imprisoning America:
The Social Effects o f Mass Incarceration (Mary Pattillo ct al. eds.,
2004)............................................................................................................16

von Mirsch. Andrew. Doing Justice: The Principle o f Commensurate 
Deserts, in Sentencing (A. von l lirseh & S. Gross eds., 1981)............... 15

Treatises

1 LaFave, Wayne R. & Scott, Austin W., Jr., Substantive Criminal 
Law § 1.5 (2d cd. 2003)............................................................ 6, 12, 13, 18



INTRODUCTION AND ID EN T ITY
AND IN T ER EST  OF TH E A M I C I  C U R I A E

This appeal addresses whether Article VI, Section 3 of the Washington State 

Constitution (“Article VI, Section 3”), which disenfranchises all persons convicted 

of an “infamous crime,” violates the Voting Rights Act, 42 U.S.C. § 1973 

(“VRA”). Section 2 of the VRA (“Section 2”) proscribes any voting practice 

imposed by any state that “results in a denial or abridgement of the right of any 

citizen of the United States to vote on account of race or color.” § 1973(a). To 

determine whether a voting practice violates Section 2, courts are directed to look 

at the “totality of the circumstances” surrounding the practice. § 1973(b). The 

Senate Report accompanying the 1982 amendments to the Voting Rights Act listed 

non-exclusive factors to be considered by courts when determining the totality of 

the circumstances. S. Rep. No. 97-417, at 28-29 (1982), reprinted in 1982 

U.S.C.C.A.N. 177, 206-07 (“Senate Report”). The ninth of these factors is 

“whether the policy underlying the state[’sj . . . use of [the| . . . voting practice . . . 

is tenuous.” Id. (“Ninth Senate Factor”).

Here, the District Court determined that the policy underlying Washington’s 

felon disenfranchisement law was not tenuous. The proposed amici curiae 

disagree with the District Court and argue herein that Washington State's policy is 

tenuous because there is no legitimate penal or regulatory state interest that 

justifies the Washington State felon disenfranchisement scheme.

I



A. IDENTITY OF THE PROPOSED AMICI CURIAE

The proposed amici curiae in this action, whose names, positions, and 

accomplishments are listed in Attachment A, are uniquely situated to opine on the 

tenuousness of the policy behind Washington’s felon disenfranchisement scheme. 

They are all social scientists and criminologists who have studied and continue to 

study the impact of state laws and policies on criminal offenders. They are experts 

in community corrections, and some have served as government officials or 

officers in administering programs of probation or parole. These experts are 

familiar with, and have made important contributions to, the body of academic 

literature on community corrections. In addition, many of them have participated 

as amici curiae in other cases challenging disenfranchisement statutes in New 

Jersey, New York, and/or Colorado. Accordingly, these criminologists seek leave 

to appear as amici curiae because they have reasoned opinions on the issue of 

disenfranchisement of offenders, share an interest in bringing their views before 

the Court, and desire to assist the Court as it addresses the complex and important 

issues raised by the parties in this matter.

B. INTEREST OF THE PROPOSED AMICI OJRIAE

The proposed amici curiae in this action contend that the Washington State

policy underlying its felon disenfranchisement law is tenuous because 

disenfranchisement is not a valid tool for punishment of offenders. As set forth

2



more thoroughly below, while the State has a legitimate interest in punishing 

felons, disenfranchisement of offenders does not serve any of the well accepted 

purposes of punishment -  retribution, deterrence, rehabilitation, or incapacitation -  

recognized by the Washington State Legislature. Wash. Rev. Code § 9.94A.010. 

Nor can Washington's law be justified as a regulatory measure because blanket 

disenfranchisement of offenders bears no rational relationship to electoral fraud. 

Similarly, felon disenfranchisement is not justified under Locke’s social contract 

theory -  that recommends withholding fundamental rights from those who have 

broken the law -  because the United States Constitution does not permit any other 

fundamental rights of felons to be abridged absent a reasonable regulatory need, 

which does not exist here.

In considering whether the Ninth Senate Factor weighed in favor of the State 

or the Appellants, the District Court found that Appellees had failed to explain why 

felon disenfranchisement was “necessary to vindicate any identified state interest.” 

(R. at 649.) Nevertheless, the District Court went on to conclude that the policy 

behind felon disenfranchisement was not tenuous because of the longstanding 

acceptance of such laws in this nation and the Constitutional recognition “of the 

states’ power to disenfranchise felons.” Id.

The proposed amici curiae contend that not only does felon 

disenfranchisement fail to be necessary to vindicate any state interest, but that

3



depriving offenders of the right to vote actually obstructs the state’s interest in 

rehabilitating offenders. See Wash. Rev. Code § 9.94A.010 (declaring a purpose 

of sentencing to be to “[o]ffer the offender an opportunity to improve him or 

herself’); Wash. Rev. Code § 9.96A.010 (“The legislature declares that it is the 

policy of the state of Washington to encourage and contribute to the rehabilitation 

of felons and to assist them in the assumption of the responsibilities of 

citizenship . . .”).

Moreover, the District Court erred in considering the longstanding use of 

felon disenfranchisement laws to mitigate the tenuousness of the policy underlying 

such laws. Indeed, if historical acceptance were permitted to weigh against the 

lack of legitimate state interest in a law, the VRA could support voter literacy tests, 

poll taxes, and a property requirement to exercise the vote, all of which had a long 

history of usage before they were discredited in this nation. See Hayden v. Pataki, 

449 F.3d 305, 355 (2d Cir. 2036) (Parker, J„ dissenting).

For these reasons, the leading criminologists and social scientists whose 

names appear on Attachment A desire to participate in this case as amici curiae 

and to have the opportunity to bring their views before this Court.

4



ARGUMENT

I. SWEEPING DISENFRANCHISEMENT OF FELONS CANNOT BE 
JUSTIFIED AS A PUNITIVE MEASURE BECAUSE IT DOES NOT 
SERVE ANY OF THE LEGITIMATE GOALS OF PUNISHMENT.

Felon disenfranchisement cannot be justified as a legitimate punitive 

measure. It has long been established that punishment is, or should be, justified by 

some mixture of four penological goals -  incapacitation, deterrence, rehabilitation, 

and retribution. See, e.g., Ewing v. California, 538 U.S. 11 (2003). The State of 

Washington has also recognized these goals in various formulations. Wash. Rev. 

Code § 9.94A.010 (noting multiple purposes, including "[pjrotectfing] the public,” 

“[o]ffer[ing| the offender an opportunity to improve him or herself,” and 

“[r]educ[ing] the risk of reoffending by offenders in the community”). In addition, 

the Revised Code of Washington guarantees certain protections for offenders. See 

id. (ensuring that sentencing is proportionate to the seriousness of the offense and 

commensurate with the punishment imposed on others committing similar 

offenses). Disenfranchising offenders serves neither the four goals of sentencing, 

nor the statutory safeguards.

A. Incapacitation or Prevention Is Not a Valid Justification for Felon 
Disenfranchisement Because the Public Is Not Harmed by Felons 
Voting._______________________________________________

Incapacitation is not a valid justification for felon disenfranchisement. 

Incapacitation, which is also termed “protection,” “restraint,” or “isolation,” is the

5



principle that that “society may protect itself from persons deemed dangerous 

because of their past criminal conduct by isolating these persons from society.” 1 

Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 1.5 (2d ed. 

2003). In the context of disenfranchisement, this translates into the idea that 

offenders will taint the electoral process by voting, and that disenfranchisement is 

necessary to incapacitate the offender from doing so.

The possible rationales for disenfranchisement as incapacitation reduce to 

two basic arguments. The first is the concern that, because the individuals are 

criminals, they would commit electoral fraud. The second is the fear that they 

would use their votes to achieve immoral ends. Neither of these arguments, upon 

examination, offers a permissible reason to deprive offenders of the right to vote.

1. Disenfranchisement Does Not Louically Prevent Electoral Fraud.

The alleged justification for disenfranchisement as a method of

incapacitation is that it presents electoral fraud. Preventing a felon from voting, 

though, would only make sense as incapacitation if either (1) the offender were 

convicted of an electoral fraud offense, or (2) the mere fact that the person had 

been convicted of a felony indicates that he or she is likely to commit electoral 

fraud or otherwise denigrate the electoral process. With regard to the first 

alternative, the proposed amici curiae concede that there is a reasonable regulatory 

rationale in preventing those convicted of electoral offenses from voting.

6



However, in Washington State, many offenses that are directly related to the 

electoral process do not result in disenfranchisement. See, e.g., Wash. Rev. Code 

§ 29A.84.050 (tampering with registration form, absentee or provisional ballots); 

Wash. Rev. Code § 29A.84.120 (intentionally disenfranchising an eligible citizen 

or discriminating against a person eligible to vote by denying voter registration); 

Wash. Rev. Code § 29A.84.540 (unlawfully removing ballots from polling place); 

Wash. Rev. Code § 29A.84.640 (solicitation of bribe by voter).

The second alternative corresponds to the theory of maintaining “the purity 

of the ballot box.” This justification is based either on the idea that an offender is 

more likely to commit electoral fraud, so disenfranchisement purifies the electoral 

process, or that an offender would use his or her vote for immoral purposes, so 

disenfranchisement purifies electoral results. Both of these justifications are 

flawed.

The fear that it is more likely that an offender would commit electoral 

offenses, because such people have a propensity to commit future crimes, is a 

questionable proposition, at best. As succinctly written, in reference to a 

Tennessee law, “[cjrimes such as bigamy, destruction of a will, and breaking into 

an outhouse . . . simply have no correlation with the electoral process and do not 

logically indicate a greater propensity on the part of the [offender] to commit 

election crime.” Mark E. Thompson, Comment: Don’t Do The Crime I f  You Ever

1



Intend To Vote Again: Challenging the Disenfranchisement o f Ex-Felons as Cruel 

and Unusual Punishment, 33 Seton Hall L. Rev. 167, 191 (2002).

While the offense of breaking into an outhouse is not enumerated as a felony 

triggering disenfranchisement in Washington, as it is in Tennessee, there are other 

felonies in Washington -  equally unrelated to election fraud -  that strip offenders 

of the right to vote. See, e.g., Wash. Rev. Code § 9A.64.010 (bigamy); Wash. Rev. 

Code § 9A.64.020 (incest); Wash. Rev. Code § 9A.49.020 (unlawful discharge of a 

laser in the first degree); Wash. Rev. Code § 9A.56.083 (theft of livestock for 

personal use).

Moreover, even if the fear that offenders are more likely to commit election 

fraud had some grounding in truth, blanket disenfranchisement would be an 

excessive solution to the problem. See Note: The Disenfranchisement o f Ex- 

Felons: Citizenship, Criminality, and the “Purity o f the Ballot Box, ” 102 Harv.

L. Rev. 1300, 1303 (1989). Such a solution is comparable to enacting a law 

prohibiting offenders from using the postal service for fear they will commit mail 

fraud. The Legislature has less restrictive and less burdensome means at its 

disposal to forestall election fraud. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 353 

(1972) (“[The state] has at its disposal a variety of criminal laws that are more than 

adequate to detect and deter whatever fraud may be feared.”).

8



2. The State Cannot Prevent Individuals from Voting for Fear of 
How They Might Vote.____________________________ _ _

Article VI, Section 3 also cannot be justified by the fear that offenders 

would use their votes to achieve immoral ends. The idea of disenfranchisement 

functioning as a quarantine to maintain the health of the body politic has long been 

abandoned. For forty years, the United States Supreme Court has decried any 

legislative attempt to prevent individuals from voting for fear of how they might 

vote. Carrington v. Rash, 380 U.S. 89, 94 (1965) (“‘Fencing out’ from the 

franchise a sector of the population because of the way they may vote is 

constitutionally impermissible.”); Romerv. Evans, 517 U.S. 620, 634 (1996) 

(expressly rejecting the Mormon disenfranchisement case, Davis v. Beason, which 

had concluded that advocates of polygamy could be disenfranchised because of 

their support for an illegal practice).

Romer and Carrington thus make obsolete the reasoning of Green v. Board 

o f Elections that:

“it can scarcely be deemed unreasonable for a state to 
decide that perpetrators of serious crimes shall not take 
part in electing the legislators who make the laws, the 
executives who enforce these, the prosecutors who must 
try them for further violations, or the judges who are to 
consider their cases.”

Green v. Bd. o f Elections, 380 F.2d 445, 451 (2d Cir. 1967). While this has 

persuaded many courts, see, e.g., Woodruff v. Wyoming, 49 F. App’x 199, 203

9



(10th Cir. 2002); Wesley v. Collins, 791 F.2d 1255, 1261-62 (6th Cir. 1986); Hayes 

v. Williams, 341 F. Supp. 182, 189 (S.D. Tex. 1972), this Court has already 

rejected the reasoning of Green. Dillenburg v. Kramer, 469 F.2d 1222, 1224 (9th 

Cir. 1972). Such a rationale is nothing short of viewpoint discrimination, and is no 

longer constitutionally allowed.

Instead, Carrington, Romer, and their progeny recognize the vital 

importance to the democratic process of protecting views hostile to those of the 

temporal majority from suppression. “The ballot is the democratic system's coin 

of the realm. To condition its exercise on support of the established order is to 

debase that currency beyond recognition.” Richardson v. Ramirez, 418 U.S. 24, 83 

(1974) (Marshall, J., dissenting); see also Reynolds v. Sims, i l l  U.S. 533, 555 

(1964) (“The right to vote freely for the candidate of one’s choice is of the essence 

of a democratic society, and any restrictions on that right strike at the heart of 

representative government.”). Indeed, the Supreme Court of Canada, in its 

decision striking down the Canadian disenfranchisement statute, declared the 

principle, applicable equally to Canada and the United States, that “[djenial of the 

right to vote on the basis of attributed moral unworthiness is inconsistent with the 

respect for the dignity of every person that lies at the heart of. . . democracy.” 

Sauve v. Canada, [2002] 3 S.C.R. 519, 550 (Canada).

10



Even the view that felon disenfranchisement is merely a means to promote 

informed and conscientious voting, as opposed to deterring viewpoints hostile to 

society, is not supported by modern jurisprudence. The United States Supreme 

Court “has consistently rejected restrictions on the franchise as a reasonable means 

of promoting intelligent or responsible voting.” Pamela S. Karlan, Convictions 

and Doubts: Retribution, Representation, and the Debate Over Felon 

Disenfranchisement, Stanford Law School, Public Law Working Paper No. 75, at 8 

(2004), available at http://papers.ssrn.com/abstract=484543 (citing Dunn, 405 U.S. 

at 354-56; Kramer v. Union Free Sch. Dist., 395 U.S. 621, 632 (1969)).

The State cannot constitutionally withhold the franchise from felons to 

prevent them from voting one way or the other. Carrington, 38 U.S. at 94. This 

policy sustains the essence of democracy. While “[ujnpopular minorities may seek 

redress against an infringement of their rights in the courts, . . . they can only seek 

redress against a dismissal of their political point of view at the polls.” Sauve,

3 S.C.R. at 546. In short, a political quarantine is not a legitimate State purpose.

B. Deterrence Does Not Justify Felon Disenfranchisement.

Deterrence also logically fails as a justification for stripping offenders of the

right to vote. General deterrence is defined as the idea that “the sufferings of the 

criminal for the crime he has committed are supposed to deter others from 

committing future crimes, lest they suffer the same unfortunate fate.” LaFave &

http://papers.ssrn.com/abstract=484543


Scott, supra, at § 1.5. Particular (or “specific”) deterrence “aims to deter the 

criminal himself (rather than to deter others) from committing further crimes, by 

giving him an unpleasant experience he will not want to endure again.” Id.

There is no tenable argument that felon disenfranchisement laws serve any 

general deterrent purpose. General deterrence depends upon a punishment being 

widely known to those it hopes to deter. Felon disenfranchisement laws, however, 

operate outside the public’s view and by law rather than by sentencing decision. 

Jeremy Travis, Invisible Punishment: An Instrument o f Social Exclusion, in 

Invisible Punishment: The Collateral Consequences o f Mass Imprisonment 15-16 

(Marc Mauer & Meda Chesey-Lind eds., 2002). Few potential offenders therefore 

know that they will lose the right to vote.

Even if one assumes that potential offenders do know they will lose their 

right to vote if convicted, disenfranchisement does not realistically serve as a 

general deterrent. « Even though voting is an essential right in a democratic society, 

loss of that right pales in comparison to the many other consequences of criminal 

conviction, such as imprisonment, physical injury or death while in prison, and the 

prospect of economic ruin upon release due to employers’ reluctance to hire 

individuals with criminal records. Potential disenfranchisement, like the potential 

disability of felons to serve on juries until their civil rights are restored, see Wash.

12



Rev. Code § 2.36.070(5), is unlikely to be included in the considerations made by 

an individual contemplating whether or not to commit a felony.

Similarly, felon disenfranchisement does not serve a specific deterrent 

purpose. Rather than sending the desired deterrent message that crime does not 

pay, disenfranchisement “sends the message that those who commit serious 

breaches are no longer valued as members of the community, but instead are 

temporary outcasts from our system of rights and democracy.” Sauve, 3 S.C.R. at 

548. Rather than encouraging offenders not to reoffend, disenfranchisement 

alienates offenders with the message that they are valueless. Not only does this fail 

to prevent the offender from recidivism, but it obstructs the rehabilitation of the 

offender, thus impeding two of the recognized purposes of punishment.

C. Retribution Is Not a Justification for Stripping Felons of the Right to 
Vote Because Blanket Disenfranchisement Renders Punishment 
Disproportionate._________________________________________

Blanket disenfranchisement does not properly apply the retributive principle. 

That is because retributive justice encompasses the concept of proportionality, and 

disenfranchisement is gratuitously added onto otherwise deserved punishment. 

Retribution, as a theory of punishment, involves the imposition of punishment 

“because it is fitting and just that one who has caused harm to others should 

himself suffer for it.” LaFave & Scott, supra, at § 1.5.

13



“The propensity for retribution is deeply ingrained in man's nature and can 

be traced as far back as the biblical concept o f ‘an eye for an eye, a tooth for a 

tooth.’” Howard Itzkowitz & Lauren Oldak, Note: Restoring the Ex-Offender’s 

Right To Vote: Background and Developments, 11 Am. Crim. L. Rev. 721, 735-36 

(1973) (quoting Exodus 21:23-25). But the concept of proportionality is clearly 

part of that retributive statement. Society may require an eye for an eye, but it may 

not demand an eye for a fingernail. See Wash. Rev. Code § 9.94A.555 

(“Punishments for criminal offenses should be proportionate to . . . the seriousness 

of the crime . . . .”); see also Atkins v. Virginia, 536 U.S. 304, 311 (2002) (‘“ [l]t is 

a precept of justice that punishment for crime should be graduated and 

proportioned to [the] offense.’”) (quoting Weems v. United States, 217 U.S. 349, 

367 (1910)).

Professor Andrew von Hirsch, often called “the father o f ‘just deserts

sentencing,”’ succinctly sets out the tenets of retribution-based sentencing:

Severity o f punishment should be commensurate with the 
seriousness o f the wrong. Only grave wrongs merit 
severe penalties; minor misdeeds deserve lenient 
punishments. Disproportionate penalties are undeserved 
-  severe sanctions for minor wrongs or vice versa. T his 
principle has variously been called a principle of 
“proportionality” or “just deserts” . . . the offender 
deserves punishment -  but the question of how much . . . 
carries implications of degree of reprobation.

14



Andrew von Hirsch, Doing Justice: The Principle o f Commensurate Deserts, in 

Sentencing 243, 246 (A. von Hirsch & S. Gross eds., 1981) (emphasis added).

Blanket disenfranchisement violates proportionality in two ways. First, it 

does not distinguish among felons as to the degree of culpability and severity of 

their crimes. Second, insofar as disenfranchisement is a collateral consequence of 

conviction, it adds extra suffering over and above that which would be deserved 

from the sentence judicially imposed for the crime convicted.

While there are certain restrictions that are always imposed upon prisoners

in a sweeping fashion regardless of the severity of the prisoners’ offenses, such

restrictions are necessary incidents to incarceration. Alec Ewald, Punishing at the

Polls 29 (2003), available at http://www.demos-usa.org/publ09.cfm. Depriving

incarcerated felons of the right to assemble or to enjoy privacy are appropriate

safeguards for protecting society, but depriving felons of the right to vote is not.

Id. As noted by social scientist Marc Mauer:

[Cjriminal convictions do not otherwise result in the loss 
of basic rights: convicted felons maintain the right to 
divorce, to own property, or file lawsuits. The only 
restrictions generally placed on these rights are ones that 
relate to security concerns within a prison.

Marc Mauer, Felon Voting Disenfranchisement: A Growing Collateral 

Consequence o f Mass Incarceration, 12 Fed. Sentencing Rep., Mar./Apr. 2000, at 

248, 250.

15

http://www.demos-usa.org/publ09.cfm


Moreover, the “[u]se of disenfranehisement as punishment for the sake of

punishment ean only exacerbate such hostility as exists between the criminal and

society and, indeed, may lead to further injury to the community.” Itzkowitz &

Oldak, supra, at 736. Criminologists note that offenders accept punishment that

they know they deserve; this is fundamental to ‘"just deserts” retributive

sentencing. But disproportionate punishment is not just and only fosters

resentment. In the words of one parolee interviewed for a study of

disenfranchisement's effects:

I think that just getting back in the community and being 
a contributing member is difficult enough . . . But I, 
hopefully, have learned, have paid for that and would like 
to someday feel like a, quote, “normal citizen,” . . . and 
you know that’s hard when every election you’re 
constantly being reminded, “Oh yeah, that’s right, I’m 
ashamed.” . . . It’s just like a little salt in the wound. . . .
[I ljaven’t I paid enough yet?

Christopher Uggen & Jeff Manza, Lost Voices: The Civic and Political Views o f 

Disenfranchised Felons, in Imprisoning America: The Social Effects o f Mass 

Incarceration 183 (Mary Pattillo et al. eds., 2004).

D. Rehabilitation Is Not Served - And Is Actually Impeded - by 
Disenfranchisem e n t.

Most importantly, disenfranchisement serves no rehabilitative ends. The 

American Bar Association, among others, has voiced concerns that not only does 

disenfranchisement fail to rehabilitate, but it operates as a barrier between the

16



offender and society and counteracts the rehabilitative goal of preparing the 

offender to re-enter society. See ABA Criminal Justice Standards on Collateral 

Sanctions and Discretionary Disqualification o f Convicted Persons, at R-7, 

available at http://www.abanet.org/leadership/2003/journal/101a.pdf ("‘The 

criminal justice system aims at avoiding recidivism and promoting rehabilitation, 

yet collateral sanctions and discretionary barriers to reentry may . . . perpetuate [an 

offender’s! alienation from the community.”).

Although some have argued that disenfranchisement serves an educative 

purpose by teaching offenders respect for the law, that argument is severely 

flawed. This proposition, as the Sauve court determined, has it “exactly 

backwards.” Sauve, 3 S.C.R. at 544. As that court noted, “denying [felons] the 

right to vote is bad pedagogy. It misrepresents the nature of our rights and 

obligations under the law, and it communicates a message more likely to harm than 

to help respect for the law.” Id. at 543. The message it actually sends is that “the 

basis of democratic legitimacy” may be arbitrarily denied. Id. at 544. As the 

Sauve Court stated:

It says that delegates elected by the citizens can then bar 
. . . citizens . . . from participating in future elections.
But if we accept that governmental power in a democracy 
flows from the citizens, it is difficult to see how that 
power can legitimately be used to disenfranchise the very 
citizens from whom the government’s power flows.

17

http://www.abanet.org/leadership/2003/journal/101a.pdf


Id. Disenfranchisement, quite simply, serves no rational rehabilitative or educative

purpose.

Voting, however, does foster rehabilitation and successful community re­

entry. Unquestionably, the goal of rehabilitation is “to return [the offender ] to 

society so reformed that he will not desire or need to commit further crimes.” 

LaFave & Scott, supra, at § 1.5. The right, and even the obligation, to vote is held 

out daily to members of our society as one of the privileges and proud duties of 

being an American. Disenfranchisement, therefore, signals to offenders that they 

are not truly the same as the rest of us, even while they are simultaneously being 

told that one of the aims of their sentence is to help them become full citizens.

This double message surely would confuse and alienate any citizen.

The restoration of the right to vote, however, tells the offender that to 

become aware of political issues in the community and to participate in voting is a 

positive collective endeavor. See Sauve, 3 S.C.R. at 547. This message has both 

the psychological and sociological effect of weaving the offender back into the 

community -  the very goal of rehabilitation.

18



II. FELON DISENFRANCHISEMENT CANNOT BE JUSTIFIED AS A
REGULATION BECAUSE IT DOES NOT RATIONALLY RELATE TO 
MAINTAINING ELECTORAL INTEGRITY.

While Washington courts have posited that the felon disfranchisement 

statute was not meant to be punitive, but rather regulatory in nature, see, e.g., 

Fernandez v. Kiner, 673 P.2d 191, 193 (Wash. Ct. App. 1983), that idea is faulty 

because felon disenfranchisement laws do not rationally relate to the objective of 

maintaining electoral integrity. As described above, felon disenfranchisement laws 

do not prevent election fraud because the offenses that trigger disenfranchisement 

upon conviction are completely unrelated to election fraud, and offenses related to 

electoral misconduct do not result in disenfranchisement. See I.A.l supra.

To be a valid regulation, a sanction must bear a rational relationship to the 

goal of the regulation. See Slate v. Ward, 869 P.2d 1062, 1068-69 (Wash. 1994) 

(noting, in determining whether a statute is regulatory, the importance of assessing 

both the effect of the statute and '“ the rationality between the requirement and its 

purported non-punitive function’” (citation omitted)). The State, therefore, in 

order to justify the disfranchisement statute as a regulation, must show that the 

statute’s effect somehow prevents electoral fraud or otherwise maintains the purity 

of the ballot box. The proposed amici do not question that maintaining the purity 

of the ballot box is a legitimate regulatory purpose, but rather wish to draw the

19



Court’s attention to the fact that the felon disfranchisement statute fails to establish

a rational relationship to that purpose.

As the United States Supreme Court noted, “|p (reservation of the 'purity of 

the ballot box’ is a formidable-sounding state interest.” Dunn v. Blumstein, 405 

U.S. 330, 345 (1972). The State has the burden, however, of showing a particular 

impurity feared and that the statute is necessary to prevent such an impurity. See 

id. at 345-46. The State has not met that burden here.

20



HI. LOCKE’S SOCIAL CONTRACT THEORY DOES NOT JUSTIFY 
DENYING FUNDAMENTAL RIGHTS TO OFFENDERS.

The State of Washington has asserted that the policy underlying Article VI, 

Section 3 is to limit “participation in the political process by those who have 

proven themselves unwilling to abide by the laws that result Irom that process. 

(Def.’s Answers to Pl.’s First Interrogs. attached as Exh. 1 to Tarson Deel. in Supp. 

of Mot. of Leading Criminologists for leave to file amici curiae Brief.) Although 

the District Court appeared to reject this rationale, finding that Appellees had not 

“identified [any] state interest” justifying felon disenfranchisement (R. at 649), the 

rationale appears to reflect the “social contract” theory developed by John Locke. 

This Court, however, has rejected the “social contract” theory in the equal 

protection context, Dillenburg, 469 F.2d at 1224-25, and any reliance upon this 

theory to justify felon disenfranchisement is misplaced.

Under the social contract theory,

“[B]y entering into society[,] every man ‘authorizes the 
society, or . . . the legislature thereof, to make laws for 
him as the public good of the society shall require, to the 
execution whereof his own assistance (as to his own 
decrees) is due.’ A man who breaks the laws he has 
authorized his agent to make for his own governance 
could fairly have been thought to have abandoned the 
right to participate in further administering the compact.”

Green v. Bd. o f Elections, 380 F.2d 445, 451 (2d Cir. 1967) (quoting John Locke, 

An Essay Concerning the True Original, Extent and End o f Civil Government, in

21



Two Treatises o f Government, ch. 7, § 89). To put it simply, “if you break the 

rules, you don’t get to help make the rules.” Ewald, supra, at 23. This theory, 

however, is out of place in the context of felon disenfranchisement statutes.

A. Societal Offenses Do Not Extinguish Fundamental Rights and Blanket 
Application of Social Contract Theory Is Irreconcilable with Recognized 
Constitutional Rights of Offenders.______________________________

While social contract justifications for denying the right to suffrage may 

sound just and reasonable at first blush, they cannot withstand an examination of 

fundamental democratic principles and constitutional jurisprudence. The United 

States Supreme Court has recognized that “[pjrison walls do not form a barrier 

separating prison inmates from the protections of the Constitution.” Turner v. 

Safley, 482 U.S. 78, 84 (1987) (collecting cases). Americans do not, for instance, 

limit an offender’s right to freedom of speech or to the press or to petition, even 

while the offender is in custody. Granting these freedoms, however, can be as 

influential as voting, if not more so, in affecting public policy and the creation of 

laws. As Alec Ewald notes, “(a] well-placed op-ed essay or letter to the editor -  

which [any offender, whether in custody or not,] may write -  will influence an 

election much more than any single ballot.” Ewald, supra, at 32.

Locke's social contract theory would require stripping offenders of all such 

fundamental rights to prevent offenders’ interference with our social contract. The 

United States Constitution and Americans’ basic understanding of civil rights

22



accorded to all citizens cannot permit such wholesale dispossession. Thus,

Locke’s social contract theory cannot be fully applied to contemporary American 

society, and cannot justify disenfranchisement of offenders.

The Supreme Court of Canada succinctly epitomized both Canadian and

American principles by noting that:

The social compact requires the citizen to obey the laws 
created by the democratic process. But it does not follow 
that failure to do so nullifies the citizen’s continued 
membership in the self-governing polity. Indeed the 
remedy of imprisonment for a term rather than permanent 
exile implies our acceptance of continued membership in 
the social order. Certain rights are justifiably limited for 
penal reasons, . . . fbjut whether a right is justifiably 
limited cannot be determined by observing that an 
offender has . . . withdrawn from the social compact.
Indeed, the right of the state to punish and the obligation 
of the criminal to accept punishment are tied to society’s 
acceptance of the criminal as a person with rights and 
responsibilities.

Sauve, 3 S.C.R. at 551.

B. l'he Social Contract Theory Demands a Degree of Proportionality and 
Rationality that Blanket Disenfranchisement Does Not Possess._____

Even if the social contract theory were accepted, application of the theory to 

disenfranchisement of offenders does not comport with Locke’s teachings. Locke 

wrote that the power to punish extends only “so far as calm reason and conscience 

dictate what is proportionate to [the] transgression.” Locke, supra, at eh. 2 § 8. As 

noted previously, though, blanket disfranchisement is not proportionate, see

23



Section I.C supra. While “social contract” theory was instrumental in establishing 

the foundations of the American criminal justice system, it cannot properly be used 

as a justification for felon disenfranchisement. In the absence of a legitimate 

penological rationale, social contract theory cannot supply the missing link to 

justify the practice of stripping the right to vote from offenders.

2 4



IV. THE DISTRICT COURT ERRED IN FINDING THAT LONGSTANDING 
ACCEPTANCE AND CONSTITUTIONAL ACKNOWLEDGMENT OF 
FELON DISENFRANCHISEMENT LAWS MITIGATES THE 
TENUOUSNESS OF THE POLICY BEHIND THEM.

The District Court recognized that the VRA could potentially apply to 

Washington's felon disenfranchisement law because of the “compelling evidence 

of racial discrimination and bias in Washington’s criminal justice system” (R. at 

645) such that a disproportionate number of convicted felons are members of 

protected minority groups and are deprived of the right of suffrage under this law. 

The District Court also recognized that appellees had not “identified [any] state 

interest” justifying felon disenfranchisement. (R. at 649.) But, despite these 

findings, the District Court concluded that the Ninth Senate Factor favored the 

State. (R. at 650.) It rested this conclusion on the finding that policies behind 

Washington's felon disenfranchisement law could not be tenuous because of the 

longstanding use of such laws in this nation and the reference to such laws in the 

United States Constitution. Id. Neither of these facts is relevant to the inquiry of 

whether the policies are tenuous.

The tenuousness of a policy behind a law has nothing to do with how long 

the law has been in force. The Senate, in adopting the 1982 amendments to the 

VRA, noted that the Ninth Senate Factor is applicable “even [to] a consistently 

applied [voting] practice premised on a racially neutral policy.” Senate Report at

25



29 n.l 17. Federal courts have also rejected consideration of how long a voting 

practice has been in effect when assessing the tenuousness of the policy underlying 

that practice. See, e.g., United States v. Blaine County, 363 F.3d 897, 914 (9th Cir. 

2004) (finding policy underlying at-large elections to be tenuous despite its use in 

county elections since county was organized in 1895); Goosby v. Town Bd. o f 

Town o f Hempstead, 180 F.3d 476, 484, 495 (2d Cir. 1999) (same -  despite use of 

at-large elections in town since the town's inception in 1907); Williams v. Dallas, 

734 F. Supp. 1317, 1332, 1383-84 (N.D. Tex. 1990) (finding that the policy of 

having a specified number of at-large seats on the Dallas City Council to provide a 

“city-wide view” was tenuous despite its use since 1907). In fact, as noted by one 

jurist, the “very purpose of [Section 2] was to address long-standing, widely used 

devices that impacted minority voting.” Hayden, 449 F.3d at 355 (Parker, J., 

dissenting). It is therefore odd to justify a voting practice as not tenuous for the 

purpose of analysis under the VRA simply because the practice has been employed 

for a long period of time.

Even outside the context of the VRA, courts have struck down long-standing 

practices when the policies underlying them are tenuous. See, e.g., Hirst v. United 

Kingdom, [2004] ECHR 121 (Eur. Ct. H.R.), at 41 (holding that the United 

Kingdom’s blanket disenfranchisement of incarcerated felons violated the 

Convention for the Protection of Human Rights and Fundamental Freedoms

26



because laws denying suffrage could not be justified when they “derive, 

essentially, from unquestioning and passive adherence to a historic tradition”); see 

also Lawrence v. Texas, 539 U.S. 558, 579 (2003) (“[TJimes can blind us to certain 

truths and later generations can see that laws once thought necessary and proper in 

fact serve only to oppress.”).

Similarly, the recognition in the United States Constitution that a particular 

voting practice exists does not mean that the policy behind that practice is not 

tenuous. The District Court relied on the Fourteenth Amendment’s reference to 

denial of the right to vote “for participation in rebellion, or other crime,” U.S. 

Const, amend. XIV, § 2, lor its determination that Washington's felon 

disenfranchisement laws are not tenuous. (R. at 649-50.) However, the 

recognition that felon disenfranchisement exists does not sanction the practice.

The Fourteenth Amendment does not sanction felon disenfranchisement any more 

than it sanctions denial of the right to vote based on race, which is another practice 

the Fourteenth Amendment acknowledges without proscribing. Likewise, the 

Constitution does not sanction felon enslavement even though the Thirteenth 

Amendment chose not to forbid the practice. U.S. Const, amend. XIII, § 1; see 

also Hayden v. Pataki, 449 F.3d 305, 349 (2d Cir. 2006) (Parker, J., dissenting) 

(“Declining to prohibit something is not the same as protecting it.”).

27



The District Court also relied on the Supreme Court’s holding in Richardson 

v. Ramirez, 418 U.S. 24 (1974), for the proposition that it could not examine the 

policies underlying felon disenfranchisement. (R. at 649-50.) However, nothing in 

Richardson supports the conclusion that felon disenfranchisement laws should be 

shielded from analysis under the Ninth Senate Factor for VRA purposes. 

Richardson did not address any VRA claims. It merely held that felon 

disenfranchisement laws are not per se unconstitutional. The Supreme Court 

subsequently made clear that, although felon disenfranchisement laws are not 

inherently unconstitutional, they may not be used in a racially discriminatory 

manner. Hunter v. Underwood, 471 U.S. 222 (1985). Therefore, the Supreme 

Court has not “read any special immunity for felon disenfranchisement into the 

Fourteenth Amendment.” Hayden, 449 F.3d at 349 (Parker, J., dissenting).

Therefore, regardless of longstanding practice or constitutional 

acknowledgment, the determination whether the policy behind a voting practice is 

tenuous, for the purpose of an analysis under the Ninth Senate Factor, requires 

nothing more nor less than a searching inquiry into the state’s interests in 

maintaining that practice. Because of the lack of legitimate penal or regulatory 

purpose in felon disenfranchisement laws, as well as the obstruction of the state's 

interest in rehabilitating its criminal offenders, the State of Washington cannot

2 8



maintain that the policies behind its felon disenfranchisement laws are anything but 

tenuous.

CONCLUSION

The denial of suffrage to felons has persisted out of inertia and a respect for 

an historical motivation that is no longer constitutionally permissible. It serves no 

rational purpose and it obstructs the rehabilitation of offenders into society by 

promoting dissociation and alienation. The District Court erred in considering the 

historical usage of felon disenfranchisement laws in this country when analyzing 

the tenuousness of the policy underlying Washington's felon disenfranchisement 

law. Such historical usage is irrelevant to an examination of the Ninth Senate 

Factor under the VRA's “totality of circumstances” test.

29



For these reasons, and all the others mentioned above, the proposed amici 

curiae request that this Court grant the Appellants’ requested relief -  reversing the 

District Court’s judgment and directing that judgment should be entered in favor of 

Appellants’ claim that Washington State’s felon disenfranchisement scheme 

violates Section 2 of the Voting Rights Act.

Dated: New York, New York
December 9, 2006

Respectfully Submitted,

Debevoise & Plimpton LLP 
919 Third Avenue 
New York, New York 10022 
(212)909-6000

BY: ______________________
Derek S. Tarson

Attorneys for Amici Curiae 
Leading Criminologists

Of Counsel

Marianne Koh, Esq.
W. Barton Patterson, Law Clerk

3 0



ATTACHM ENT A

The list of leading criminologists who have signed on as proposed 

amici curiae are as follows:

Alfred Blumstein is a Professor and Former Dean, H. John Heinz III School 
of Public Policy and Management; Carnegie-Mellon University in 
Pittsburgh.

Johnna Christian is an Assistant Professor in the School of Criminal 
Justice; Rutgers University in Newark, New Jersey.

Todd R. Clear is a Distinguished Professor at John Jay College of Criminal 
Justice and Executive Officer of the Program of Doctoral Studies in 
Criminal Justice, Graduate Center; City University of New York.

Cavit Cooley is an Associate Professor; Criminal Justice Program; Mercer 
County Community College.

Francis T. Cullen is a Distinguished Research Professor; Division of
Criminal Justice; University of Cincinnati. He is also a Past-President 
of the American Society of Criminology and a Past-President of the 
Academy of Criminal Justice Sciences.

Malcolm Feeley is a Professor, School of Law (Boalt Hall); University of 
California at Berkeley.

David Garland is a Professor, School of Law, and a Professor of Sociology; 
New York University.

David F. Greenberg is a Professor of Sociology; New York University.

M. Kay Harris is an Associate Professor; Department of Criminal Justice; 
Temple University.

Philip Harris is an Associate Professor; Department of Criminal Justice; 
Temple University.

A-l



Michael Israel is a Professor Emeritus and former Criminal Justice 
Director; Department of Sociology and Criminal Justice; Kean 
University.

Lauren Krivo is a Professor of Sociology; Ohio State University.

Jeff Manza is a Professor of Sociology and an Associate Director and
Faculty Fellow of the Institute for Policy Research at Northwestern 
University. He is the co-author of Lost Voices: The Civic and 
Political Views o f Disfranchised Felons.

Candace McCoy is a Professor, Graduate Center and John Jay College of 
Criminal Justice, City University of New York.

Alan Mobley is an Assistant Professor, School of Public Administration and 
Urban Studies, San Diego State University.

John Mollenkopf is a Distinguished Professor, Departments of Political 
Science and Sociology; City University of New York; Graduate 
Center.

Joan Petersilia is a Professor of Criminology, Law and Society at the 
University of California at Irvine and a Visiting Professor of Law, 
Stanford Law School. She is the author of When Prisoners Come 
Home: Parole and Prisoner Reentry (Studies in Crime and Public 
Policy).

James Short is a Professor Emeritus; Department of Sociology; Washington 
State University in Spokane, Washington.

Jonathan Simon is a Professor and Associate Dean for Jurisprudence and 
Social Policy, School of Law (Boalt Hall); University of California at 
Berkeley.

Jerome H. Skolnick is a Professor of Law; New York University School of 
Law.

Jeremy Travis is the President of John Jay College of Criminal Justice.

Bruce Western is a Professor of Sociology; Princeton University.



Deanna Wilkinson is an Associate Professor; College of Human Ecology; 
Department of Human Development and Family Science; Ohio State 
University.

A-3



Case: 06-35669 05/03/2010 Page: 1 of 1 ID: 7322382 DktEntry: 80-1

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May 3,2010

BY FEDERAL EXPRESS

Molly Dwyer, Clerk of Court 
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
95 Seventh Street
San Francisco, CA 94103-1526

Farrakhan, et al. v. Gregoire, et al. 
No. 06-35669

Dear Clerk of the Court:

In accordance with this Court’s order dated April 28, 2010, please find enclosed 
twenty (20) copies of the Brief Submitted on Behalf of Leading Criminologists as Amici 
Curiae in Support of Appellants and in Support of Reversal which was originally filed on 
December I 1,2006.

Please let me know if you have any questions or concerns.

Very truly yours, 

s/ W, Barton Patterson

W. Barton Patterson

Enclosures

cc: Counsel for all parties, except as listed below (w/o enclosures, by ECF)
Juan Cartagena, Esq. (w/o enclosures, by first class mail)

Enclosures

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Case: 06-35669 05/03/2010 Page: 1 of 1 ID: 7322382 DktEntry: 80-2

9th Circuit Case Number(s)
06-35669

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Case: 06-35669 06/10/2010 Page: 1 of 37 ID: 7368310 DktEntry:115

No. 06-35669 
In the

Unite*) S t a t e s  C ourt of Appeals; for tfje JBintlj C ircuit

Muhammad Shabazz Farrakhan, aka Ernest S. Walker; Al-Kareem Shaheed; 
Marcus X. Price; Ramon Barrientes; Timothy Schaaf; Clifton Briceno,

Plaintiffs-Appellants, 
v.

Christine O. Gregoire; Sam Reed; Harold W. Clarke; State of Washington,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Eastern District of Washington at Spokane 

No. CV 96-0076 (RHW)
Honorable Robert H. Whaley, District Judge

BRIEF OF AMICI CURIAE LAW PROFESSORS 
ANGELO N. ANCHETA, ERWIN CHEMERINSKY, KAREEM U. CRAYTON, 
JOSHUA A. DOUGLAS. CHRISTOPHER S. ELMENDORF, LUIS FUENTES- 

ROHWER, LANI GUINIER, MICHAEL S. KANG, PAMELA S. KARLAN, 
ELLEN D. KATZ, JANAI S. NELSON, MICHAEL J. PITTS, AND DANIEL P. 

TOKAJI IN SUPPORT OF PLAINTIFF-APPELLANTS

Thomas C. Goldstein 
Akin Gump Strauss Hauer & 

Feld LLP
1333 New Hampshire Ave., NW 
Washington, DC 20036

Pamela S. Karlan 
Jeffrey E. Fisher 
Stanford Law School Supreme 

Court Litigation Clinic 
559 Nathan Abbott Way 
Stanford, CA 94305 
(650) 725-4851

Counsel for Amici Curiae



Case: 06-35669 06/10/2010 Page: 2 of 37 ID: 7368310 DktEntry: 115

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................  ii

IDENTITY AND INTEREST OF AM ICI.............................................................. 1

SUMMARY OF ARGUMENT.............................................................................  2

ARGUMENT ..........................................................................................................4

I. Richardson v. Ramirez Was A Narrow Decision Addressing Only 
The “Fundamental Rights” Strand Of Equal Protection Jurisprudence,
And Provides No Protection Against Other Fourteenth or Fifteenth 
Amendment-Based Challenges To Felon Disenfranchisement Laws ......... 5

II. In Enforcing The Fourteenth And Fifteenth Amendments, Congress
Can Go Beyond Forbidding The Use of Felon Disenfranchisement 
Statutes That Plaintiffs Can Prove Violate the Constitution.......................12

CONCLUSION ..................................................................................................... 30

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE 
REQUIREMENTS .........................................................................................App 1

CERTIFICATE OF SERVICE ..................................................................... App 2

CERTIFICATE FOR BRIEF IN PAPER FORMAT ................................... App 3

i



Case: 06-35669 06/10/2010 Page: 3 of 37 ID: 7368310 DktEntry:115

TABLE OF AUTHORITIES

Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983).......................................................... 6
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252

(1977)......................................................................................................................8
Brown v. Dean, 555 F. Supp. 502 (D.R.I. 1982).............................................. ......24
Bush v. Vera, 517 U.S. 952 (1996)..................................................................  20, 21
Chisom v. Roemer, 501 U.S. 380 (1991)................................................................ 20
City o f Boerne v. Flores, 521 U.S. 507 (1997)................................................passim
City o f Mobile v. Bolden, 446 U.S. 55 (1980)........................................................ 13
City o f Rome v. United States, 446 U.S. 156 (1980).............................  3, 20, 25, 26
Connecticut v. Teal, 457 U.S. 440 (1982).........................................................  3, 27
Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998).................................................... 21
Crawford v. Marion County Election Board, 553 U.S. 181 (2008)......................... 6
Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................. 5
Farrakhan v. Gregoire, 2006 U.S. Dist. LEXIS 45987 (E.D. Wash. 2006)..........23
Farrakhan v. Washington, 359 F.3d 1116 (9th Cir.), cert, denied,

543 U.S. 984 (2004)..........................................................................  4, 20, 22, 25
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).............................................................. 27
Gaston County v. United States, 395 U.S. 285 (1969)..........................  3, 16, 17, 22
Gomillion v. Lightfoot, 364 U.S. 339 (1960)........................................................ 6, 9
Griggs v. Duke Power Co., 401 U.S. 424 (1971)................................................... 27
Harper v. Virginia Board o f Elections, 383 U.S. 663 (1966)................................... 5
Harvey v. Brewer, 2010 U.S. App. LEXIS 10822 (9th Cir. May 27, 2010)..........11
Hohn v. United States, 524 U.S. 236 (1998)........................................................... 26
Holt Civic Club v. C'ty o f Tuscaloosa...................................................................... 6
Hunter v. Underwood, 471 U.S. 222 (1985)................................................... passim
Katzenbach v. Morgan, 384 U.S. 641 (1966)..............................................  3, 18, 19
Kramer v. Union Free School District, 395 U.S. 621 (1969)............................... 5, 6
Lassiter v. Northampton County Board o f Elections, 360 U.S. 45 (1959)............. 14
Lopez v. Monterey County, 525 U.S. 266 (1999)..............................................  4, 26
Louisiana v. United States, 380 U.S. 145 (1965)..................................................... 9
LULACv. Perry, 548 U.S. 399 (2006)................................................................... 20
Michael M. v. Superior Court, 450 U.S. 464 (1981).............................................. 27
Mississippi Republican Executive Committee v. Brooks, 469 U.S. 1002 (1984) ....20 
Mississippi State Chapter, Operation PUSH v. Allain, 61A F. Supp. 1245

(N.D. Miss. 1987).................................................................................................24
Nevada Department o f Human Resources v. Hibbs, 538 U.S. 721 (2003).......  4, 28
Nixon v. Herndon, 273 U.S. 536 (1927)................................................................... 6

ii



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Oregon v. Mitchell, 400 U.S. 112 (1970)..................................................... 3, 16, 17
Ratliff v. Beale, 20 So. 865 (Miss. 1896).................................................................21
Reno v. Bossier Parish School Board, 528 U.S. 320 (2000).................................. 10
Rice v. Cayetano, 528 U.S. 495 (2000).......................................................... 3, 7, 10
Richardson v. Ramirez, 418 U.S. 24 (1974).................................................... passim
Rodriguez de Quijas v. Shear son/American Express Inc., 490 U.S. A ll (1989) ....26
Rogers v. Lodge, 458 U.S. 613 (1982).....................................................................10
Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1873)........................................... 10
South Carolina v. Katzenbach, 383 U.S. 301 (1966)..................................... passim
Southwest Voter Registration Education Project v. Shelley, 344 F.3d 914

(9th Cir. 2003) (en banc)..................................................................................... 29
Tennessee v. Lane, 541 U.S. 509 (2004).................................................................29
Thornburg v. Gingles, 478 U.S. 30 (1986)....................................................... 20, 27
United States v. Blaine County, 363 F.3d 897 (9th Cir. 2004), cert, denied,

544 U.S. 992 (2005)....................................................................................  23, 24
United States v. Georgia, 546 U.S. 151 (2006)................................................ 12, 13
United States, v. Reese, 92 U.S. 214 (1875)............................................................10

Constitutional Provisions
U.S. Const, amend. XIV................................................................................... passim
U.S. Const, amend. XV..................................................................................... passim

Statutes
Voting Rights Act Amendments of 1975, § 102, 42 U.S.C. § 1973aa(2006)......16
Voting Rights Act Amendments of 1975, § 203, 42 U.S.C.

§ 1973b(f)( 1) (2006)..............................   12
Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973 (2006)................................ passim
Voting Rights Act of 1965. § 4(e), 42 U.S.C. § 1973b(e) (2006).............................18
Voting Rights Act of 1965, preamble.......................................................................12

Other Authorities
Katz, Ellen, Not Like the South? Regional Variation and Political 

Participation Through the Lens o f Section 2, in Voting Rights Act 
Reauthorization of 2006: Perspectives on Democracy, Participation
and Power 183 (Ana Henderson ed. 2007)...........................................................24

Manza, Jeff and Christopher Uggen, Locked Out: Felon Disenfranchisement
and American Democracy (2006)....................................................................... 22

S. Rep. No. 97-417 (1982)...................................................................................... 12



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IDENTITY AND INTEREST OF AMICI CURIAE1

Amici curiae are the following professors who teach and write in areas 

related to constitutional law and legal regulation of the political process. They 

participate in this case in their personal capacity; titles are used only for purposes 

of identification.

Angelo N. Ancheta, Assistant Professor of Law, Santa Clara University School of 
Law

Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of 
California, Irvine

Kareem U. Crayton, Associate Professor of Law & Political Science, USC Gould 
School of Law

Joshua A. Douglas, Assistant Professor of Law, University of Kentucky (starting 
July 1,2010)

Christopher S. Elmendorf, Professor of Law, University of California at Davis 
School of Law

Luis Fuentes-Rohwer, Professor, Indiana University, Maurer School of Law
Lani Guinier, Bennett Boskcy Professor, Harvard Law School
Michael S. Kang, Associate Professor, Emory University School of Law
Pamela S. Karlan. Kenneth & Harle Montgomery Professor of Public Interest Law. 

Stanford Law School
Ellen D. Katz, Professor of Law, University of Michigan Law School
Janai S. Nelson, Associate Professor of Law and Assistant Director of the Ronald 

H. Brown Center for Civil Rights and Economic Development, St. John's 
University

Pursuant to Fed. R. App. P. 29(a) and this Circuit’s Rule 29-2(a), amici state 
that they have received the consent of the parties. To be precise, counsel for 
plaintiff-appellants gave their consent; counsel for defendant-appellees responded 
that “The State does not oppose your request” to participate.



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Michael J. Pitts, Associate Professor, Indiana University School of Law-
Indianapolis

Daniel P. Tokaji, Associate Professor of Law, The Ohio State University, Moritz
College of Law

Amici take no position, as a group, on the question whether Washington 

State’s felon disenfranchisement statute violates Section 2 of the Voting Rights Act 

of 1965 as amended, 42 U.S.C. § 1973 (2006). Rather, they write solely to explain 

that Congress has the power, under the enforcement clauses of the Fourteenth and 

Fifteenth Amendments, to enact legislation that reaches and prohibits the use of 

felon disenfranchisement statutes, including ones that have a discriminatory result.

SUMMARY OF ARGUMENT

The concern that applying Section 2 of the Voting Rights Act of 1965 to 

felon disenfranchisement laws would seriously jeopardize the Act’s 

constitutionality is misplaced.

First, that concern reads too much into the Supreme Court’s decision in 

Richardson v. Ramirez, 418 U.S. 24 (1974). While that decision insulates offender 

disenfranchisement laws from strict scrutiny under the “fundamental rights” strand 

of equal protection doctrine, it provides no protection against equal protection 

challenges involving allegations of racial discrimination. Hunter v. Underwood, 

471 U.S. 222 (1985). Moreover, the Fifteenth Amendment categorically bars race-

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based denial or abridgement of the right to vote. Rice v. Cayetano, 528 U.S. 495

(2000).

Second, that concern takes an unjustifiably narrow view of congressional 

enforcement power under the Reconstruction Amendments. For more than forty 

years, the Supreme Court has upheld Congress’s power to go beyond prohibiting 

voting practices that themselves violate the Constitution to reach other restrictions 

on the right to vote as well. Congress has the power to prohibit voting practices 

that perpetuate the effects of unconstitutional conduct elsewhere. Gaston County 

v. United States, 395 U.S. 285 (1969); Oregon v. Mitchell, 400 U.S. 112 (1970). 

Moreover, Congress can enact voting protections designed to prevent future 

unconstitutional conduct in the provision of government services. Katzenhach v. 

Morgan, 384 U.S. 641 (1966). Finally, Congress may prohibit practices that have 

only a discriminatory effect. City o f Rome v. United States, 446 U.S. 156 (1980); 

Connecticut v. Teal, 457 U.S. 440 (1982). Any suggestion that Section 2’s 

constitutionality presents an open question overstates the current legal landscape. 

Lower federal courts have unanimously upheld Section 2 against constitutional 

challenge and the Supreme Court, after summarily affirming a decision on the 

question, has applied the results test in a variety of contexts.

In light of the framework provided by the Supreme Court’s decisions, the 

conclusion that Congress has the power to include felon disenfranchisement laws

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within Section 2 easily follows. Some such laws plausibly violate the Constitution 

themselves. Others may perpetuate discrimination originating outside the electoral 

process. And the fact that Section 2 might reach offender disenfranchisement 

provisions that have a discriminatory result even though they cannot be connected 

to a racially discriminatory purpose poses no constitutional difficulty.

Finally, nothing in the Supreme Court’s decision in City o f Boerne v. Flores, 

521 U.S. 507 (1997), undermines the scope of Congress’s power with respect to 

voting rights. Boerne does not itself limit Congress’s broad power to enforce the 

Fifteenth Amendment, and this court should not infer such limits. Nor, in light of 

Boerne"s treatment of the VRA or the Supreme Court’s post-Boerne decisions in 

Lopez v. Monterey County, 525 U.S. 266 (1999), and Nevada Department o f 

Human Resources v. Hibbs, 538 U.S. 721 (2003), is there reason to think that 

Boerne casts constitutional doubt on Section 2’s results test.

ARGUMENT

In his dissent from a prior decision by this court denying rehearing en banc, 

Farrakhan v. Washington. 359 F.3d 1116 (9th Cir.), cert, denied. 543 U.S. 984 

(2004) (Farrakhan I), now-Chief Judge Kozinski, joined by several other members 

of the court, suggested that “extending” Section 2 of the Voting Rights Act to 

reach felon disenfranchisement laws “seriously jeopardizes its constitutionality.” 

Id. at 1121. That concern is unwarranted. First, it reads too much into the

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Supreme Court’s decision in Richardson v. Ramirez, 418 U.S. 24 (1974), 

exempting felon disenfranchisement laws from heightened scrutiny under the 

“fundamental rights” strand of equal protection jurisprudence. Ramirez in no way 

diminishes Congress’s power to address felon disenfranchisement laws that 

implicate racial discrimination. Second, that concern mistakenly downplays a 

series of other Supreme Court decisions that establish and reaffirm Congress’s 

power to prohibit qualifications on the right to vote, including felon 

disenfranchisement statutes, that violate Section 2’s results test.

I. Richardson v. Ramirez Was A Narrow Decision Addressing Only The 
“Fundamental Rights” Strand Of Equal Protection Jurisprudence, And 
Provides No Protection Against Other Fourteenth Or Fifteenth 
Amendment-Based Challenges To Felon Disenfranchisement Laws.

1. Challenges to restrictions on the franchise implicate at least two distinct 

strands of equal protection jurisprudence. The first has come to be known as the 

“fundamental rights” strand. Harper v. Virginia Board o f Elections, 383 U.S. 663 

(1966) (challenging a poll tax), Kramer v. Union Free School District, 395 U.S. 

621 (1969) (challenging a rule restricting the vote in school board elections to 

owners or lessons of property in the district and parents of schoolchildren), and 

Dunn v. Blumstein, 405 U.S. 330 (1972) (challenging durational residence 

requirements), for example, establish that when a state denies the franchise to

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resident citizens of voting age, that restriction is permissible only i f '‘necessary to 

promote a compelling state interest.” Kramer, 395 U.S. at 627.2

The second strand of equal protection law involving restrictions on the 

franchise focuses not on the fact that the state is denying citizens the right to vote, 

but rather on the nature of the line the government has drawn between those who 

can vote and those who cannot. While lines drawn on the basis of characteristics 

such as citizenship or bona fide residency are presumptively legitimate and can be 

justified under deferential rationality review, see, e.g., Holt Civic Club v. City o f 

Tuscaloosa, 439 U.S. 60, 70 (1978), those based on race -  whether explicit, see, 

e.g., Nixon v. Herndon, 273 U.S. 536 (1927) (challenging a state law limiting 

participation in a party's primary to white voters), or covert, see, e.g., Gomillion v. 

Lightfoot, 364 U.S. 339 (1960) (challenging the redrawing of municipal 

boundaries) -  are not. While theoretically one might suppose that race-based 

restrictions on the right to vote could survive strict scrutiny under the Fourteenth 

Amendment, the Supreme Court has treated the Fifteenth Amendment, which 

provides in pertinent part that “[t|he right of citizens of the United States to vote

7 The Court’s recent decision in Crawford v. Marion County Election Board, 
553 U.S. 181 (2008), is not to the contrary. Justice Stevens’s opinion announcing 
the judgment of the Court used a balancing test derived from Anderson v. 
Celebrezze, 460 U.S. 780 (1983), to assess whether voter ID laws violated the 
Equal Protection Clause, but the issue in that case was not the scope of the 
franchise itself, but rather a restriction on eligible voters that was designed to 
“protect the integrity and reliability of the electoral process.” Crawford, 553 U.S. 
at 189-90 (quoting Anderson, 460 U.S. at 788 n.9).

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shall not be denied or abridged by the United States or by any State on account of 

race,” as an absolute bar to racial discrimination in voting. U.S. Const, amendment 

XV, § 1; see Rice v. Cayetano, 528 U.S. 495, 511-12, 520 (2000); infra at pages 9- 

11.

2. The Supreme Court’s decision in Richardson v. Ramirez, 418 U.S. 24 

(1974), addressed only the first, “fundamental rights,” strand of equal protection 

doctrine. In Ramirez, the Court concluded that the Reduction of Representation 

Clause in Section 2 of the Fourteenth Amendment -  which strips states of seats in 

the House of Representatives if they disenfranchise male citizens over the age of 

21 “except for participation in rebellion, or other crime” -  provided an “affirmative 

sanction” for felon disenfranchisement that “was not present in the case of other 

restrictions on the franchise” to which the Court had applied strict scrutiny. 418 

U.S. at 54.

The plaintiffs in Ramirez made no allegations regarding any racially 

discriminatory purpose or effect of the California provision at issue. Nonetheless, 

the Court went out of its way to describe how even the Congress that had proposed 

the Fourteenth Amendment and exempted felon disenfranchisement from the 

reduction-of-representation penalty sought to ensure that states could not “misuse 

the exception for felons to disenfranchise Negroes.” Id. at 52.

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That the Supreme Court's decision in Ramirez provides no protection to 

offender disenfranchisement statutes that were enacted or maintained for racially 

discriminatory purposes is confirmed by the Court’s unanimous decision in Hunter 

v. Underwood, 471 U.S. 222 (1985). Hunter concerned a provision in the 1901 

Alabama Constitution that disenfranchised persons convicted of selected crimes. 

As then-Justice Rehnquist’s opinion for the Court explained, the drafters had 

singled out for disenfranchisement those crimes they believed to be “more 

frequently committed by blacks.” Id. at 227. The challenged provision continued, 

into the latter quarter of the twentieth century, to result in disproportionate 

disenfranchisement of black citizens. Id. (noting that blacks were at least 1.7 times 

as likely as whites to be excluded).

The Court recognized that the Alabama law “on its face [was] racially 

neutral,” id., but nonetheless struck it down under the framework developed in 

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 

(1977) (itself a housing, not a voting, case). Because the challenged provision 

“would not have been adopted by the convention or ratified by the electorate in the 

absence of the racially discriminatory motivation,” it violated the Equal Protection 

Clause. Hunter, 471 U.S. at 231. And the Supreme Court rejected out of hand 

Alabama’s invocation of Ramirez and the Reduction of Representation Clause: 

“[W| e are confident that § 2 [of the Fourteenth Amendment] was not designed to

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permit the purposeful racial discrimination attending the enactment and operation 

of [Alabama’s statute] which otherwise violates § 1 of the Fourteenth Amendment. 

Nothing in our opinion in Richardson v. Ramirez suggests the contrary.” Id. at 233 

(internal cross-reference omitted).

3. The text and history of the Fifteenth Amendment reinforce the conclusion 

that racially discriminatory voting practices violate the Constitution regardless of 

whether similar practices enacted without a racially discriminatory purpose would 

be subjected to heightened scrutiny. The Supreme Court has repeatedly used the 

Fifteenth Amendment to strike down voting qualifications adopted or maintained 

for the purpose of disenfranchising racial minorities. See, e.g., Louisiana v. United 

States, 380 U.S. 145 (1965) (striking down a facially neutral "interpretation” test 

for being applied in a racially discriminatory manner even though the Court had 

refused to apply heightened scrutiny to other literacy tests); Gomillion v. Lightfoot, 

364 U.S. at 342 (striking down the redrawn boundaries of a municipality as a 

purposeful scheme for removing all black voters from the city even though states' 

general power to define municipal boundaries was subject to great deference). 

Thus, the statute at issue in Hunter v. Undenvood surely violated the Fifteenth 

Amendment as well as the Fourteenth.

While Fourteenth and Fifteenth Amendment protections often overlap, the 

Supreme Court has emphasized that the Fifteenth Amendment’s express

9



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prohibition on denial or abridgement of the right to vote on account of race “has 

independent meaning and force.” Rice v. Cayetano, 528 U.S. at 522. Thus, in 

Rice, the Supreme Court reversed this court's determination that “compliance with 

the one-person, one-vote rule of the Fourteenth Amendment somehow excuses 

compliance with the Fifteenth Amendment.” Id. Moreover, the Court suggested 

that even if a government's interests might justify other forms of race-conscious 

affirmative action, in light of the Fifteenth Amendment they could not justify racial 

restrictions on the franchise. See id. at 518-22. ’

Congress in fact proposed the Fifteenth Amendment because “[a| few years’ 

experience satisfied the thoughtful men who had been the authors of the other two 

amendments” that the powers granted to Congress by the Thirteenth and 

Fourteenth Amendments to eradicate racial discrimination in voting “were 

inadequate.” Slaughter-House Cases, 83 U.S. (16 Wall) 36, 71 (1873); see also 

United States, v. Reese, 92 U.S. 214, 218 (1875) (stating that “[pjrevious to th[e] 

[Fifteenth| [Ajmendment, there was no constitutional guaranty against this 

discrimination: now there is”). Because the Fifteenth Amendment comes after the 

Fourteenth, the Fifteenth sets the controlling standard for the scope of

While sometimes the Fifteenth Amendment provides broader protection than 
the Fourteenth, the converse is also true. Although the Supreme Court has not held 
that purposeful dilution of a racial minority’s voting strength is actionable under 
the Fifteenth Amendment, it has found such dilution to violate the Fourteenth.
Compare Reno v. Bossier Parish School Board, 528 U.S. 320, 334 n.3 (2000) with 
Rogers v. Lodge, 458 U.S. 613,617 (1982).

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constitutional protections when these amendments are inconsistent. Of special 

salience to the question before this court, as the amicus brief for the Constitutional 

Accountability Center details, the Congress that drafted the Fifteenth Amendment 

considered and rejected attempts to include the Fourteenth Amendment’s exception 

for felon disenfranchisement in the Fifteenth as well. Thus, even under the 

erroneous assumption that the Fourteenth Amendment somehow would not itself 

forbid racially discriminatory felon disenfranchisement statutes (an assumption 

unanimously rejected in Hunter), such disenfranchisement would still 

independently violate the Fifteenth Amendment.

4. Finally, Ramirez does not immunize offender disenfranchisement laws 

from statutory prohibitions that enforce either the Fifteenth Amendment or the 

suspect classification strand of equal protection. “fTjhe absence of a constitutional 

prohibition does not somehow bar a statutory one. Simply because the Fourteenth 

Amendment does noT itself prohibit States from enacting a broad array of felon 

disenfranchisement schemes does not mean that Congress eannot do so through 

legislation -  provided, of course, that Congress has the authority to enact such a 

prohibition.” Harvey v. Brewer, 2010 U.S. App. LEXIS 10822, * 22 (9th Cir. 

May 27, 2010). As amici explain in the next section, Congress does have such

authority.



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II. In Enforcing The Fourteenth And Fifteenth Amendments, Congress 
Can Go Beyond Forbidding The Use Of Felon Disenfranchisement 
Statutes That Plaintiffs Can Prove Violate The Constitution.
Congress enacted VRA Section 2 expressly to enforce the guarantees of the 

Fourteenth and Fifteenth Amendments.4 The question whether Congress has the 

enforcement authority to reach offender disenfranchisement provisions has a 

straightforward answer. As this court concluded the first time this case was before 

it, that answer is “yes.”

l . Chief Judge Kozinski’s dissent itself recognizes that Congress can use its 

enforcement power to ban practices that violate the Constitution directly. In 

United Stales v. Georgia, 546 U.S. 151 (2006), Justice Scalia’s opinion for a 

unanimous court confirmed that "‘no one doubts” Congress’s ‘"power to ‘enforce ... 

the provisions’ of the [Reconstruction! Amendments] by creating private remedies

Initially, Congress enacted the VRA “to enforce the fifteenth amendment to 
the Constitution of the United States, and for other purposes.” Voting Rights Act 
of 1965, Pub. L. No. 89-110, pmbl, reprinted in 1965 U.S. Cong. Code & Ad. 
News, 480, 480. In 1965, Congress relied explicitly on its Fourteenth Amendment 
enforcement power only with respect to a section of the Act involving citizens who 
had been educated in American-flag schools where English was not the primary 
language of instruction. See Voting Rights Act of 1965. § 4(e), Pub. L. No. 89- 
110, reprinted in 1965 U.S. Cong. Code & Ad. News, 480, 483 (codified at 42 
U.S.C. § 1973b(e) (2006)). In 1975, when Congress amended Section 2 of the 
VRA to protect members of language as well as racial minorities, it specifically 
invoked its enforcement powers under both the Fourteenth and Fifteenth 
Amendments. See Voting Rights Act Amendments of 1975, § 203, Pub. L. No. 
94-73, 89 Stat. 400, 401 (codified as amended at 42 U.S.C. § 1973b(f)(l) (2006)); 
see also S. Rep. No. 97-417, at 40 n. 152 (1982) (declaring that Congress’s further 
amendment of VRA in 1982 § 2 to impose a results test “rests on both 
amendments”).

12



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against the States for actual violations of those provisions.’'' Id. at 158 (omission in 

original). That is true even when another constitutional provision might seem to 

provide express protection for the state. In United States v. Georgia, for example, 

the Eleventh Amendment’s declaration of sovereign immunity provided no 

protection against an Americans With Disabilities Act claim when Congress used 

its enforcement power to abrogate that immunity with respect to claims based on 

the Fourteenth Amendment’s incorporation of the prohibition on cruel and unusual 

punishments. So, too, the exemption of offender disenfranchisement from the 

Reduction of Representation Clause provided no protection against the 

constitutional challenge in Hunter, and would have provided no protection against 

a VRA Section 2 claim either.5 There should be no doubt, then, that Congress has 

the authority to use its Fourteenth and Fifteenth Amendment enforcement powers 

to prohibit voting qualifications, including ones based on criminal convictions, that 

are adopted or maintained, at least in part, because of their adverse impact on 

minority citizens, and to provide a cause of action for citizens whose right to vote 

has been denied.

The complaint in Hunter was filed in 1978, before the 1982 amendments to 
VRA Section 2. At the time, the language of § 2 essentially tracked the language 
of § 1 of the Fifteenth Amendment and a few years later a plurality of the Supreme 
Court construed § 2 ‘’to have an effect no different from that of the Fifteenth 
Amendment itself.” City o f Mobile v. Bolden, 446 U.S. 55, 61 (1980) (plurality 
op.).

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2. Congress’s enforcement power, however, goes beyond simply 

authorizing it to provide a cause of action for citizens whose constitutional rights 

have been violated. Congress can also prohibit voting qualifications where there is 

a plausible risk that such practices were enacted or maintained for a discriminatory 

purpose. Moreover, it can also forbid qualifications that perpetuate the effects of 

unconstitutional conduct outside the electoral process. And it can reach practices 

that impair minority citizens’ efforts to prevent future unconstitutional conduct.

The Supreme Court’s treatment of congressional bans on literacy tests shows 

how Congress’s enforcement power extends beyond simply prohibiting practices 

that themselves directly violate the Constitution. In Lassiter v. Northampton 

County Board o f Elections, 360 U.S. 45 (1959), the Supreme Court held that 

literacy tests do not in and of themselves violate the equal protection clause. The 

Court explained that, absent a showing of intentional racial discrimination, North 

Carolina’s literacy test could not be condemned “on its face as a device unrelated” 

to the stale’s legitimate desire “to raise the standards for people of all races who 

cast the ballot.” Id. at 54. And yet, over the course of the next decade, the 

Supreme Court upheld increasingly sweeping statutory bans on literacy tests as an 

appropriate use of congressional enforcement powers.

a. Congressional power to reach potentially unconstitutional conduct within 

the electoral process itself. In South Carolina v. Katzenbach, 383 U.S. 301 (1966),

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the Supreme Court upheld Congress’s temporary suspension of literacy tests in 

jurisdictions with significantly depressed levels of political participation. In 

upholding the suspension, the Court employed a deferential standard for reviewing 

exercises of Congress’s Fifteenth Amendment enforcement powers similar to that 

it had long used to evaluate Congress’s exercise of its Article l powers under the 

Necessary and Proper Clause. See id. at 324 (Congress may “use any rational 

means to effectuate the constitutional prohibition of racial discrimination in 

voting” (emphasis added)).

Based on the previous “century of systematic resistance to the Fifteenth 

Amendment,” id. at 328, the Court concluded that Congress could properly go 

beyond authorizing, or even facilitating, case-by-case adjudication of the 

constitutionality ol literacy tests, in favor of a more wholesale approach. Congress 

could rely on evidence from some of the covered jurisdictions that the tests “have 

been instituted with the purpose of disenfranchising Negroes, have been framed in 

such a way as to facilitate this aim, and have been administered in a discriminatory 

fashion for many years,” id. at 333-34, to ban them throughout all of those 

jurisdictions.

b. Congressional power to forbid voting-related practices because o f 

unconstitutional discrimination outside the electoral process. Three years after 

South Carolina v. Katzenbach, the Supreme Court rejected any suggestion that the

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initial congressional ban on literacy tests depended on proof of intentional 

discrimination in the use of a particular test. In Gaston County v. United States, 

395 U.S. 285 (1969), the Court held that Congress had the power to prohibit the 

use of literacy tests even where the disparate impact of the test was attributable to 

discrimination outside the electoral process -  there, in the public education system. 

Because Gaston County had “systematically deprived its black citizens of the 

educational opportunities it granted to its white citizens,” even “‘[ijmpartiaP 

administration of the literacy test today would serve only to perpetuate these 

inequities in a different form.” Id. at 297.

In the 1970 amendments to the Voting Rights Act, Congress went even 

further, imposing a nationwide ban on the use of literacy tests. See Voting Rights 

Act Amendments of 1970, § 6, Pub. L. No. 91-285, 84 Stat. 314, 315.6 This ban 

extended beyond the originally covered jurisdictions -  as to which Congress had 

had extensive evidence of intentional racial discrimination -  to reach jurisdictions 

as to which Congress had no particularized evidence of unconstitutional conduct at 

all.

In Oregon v. Mitcheli 400 U.S. 112 (1970), the Supreme Court unanimously 

upheld this wholesale national prohibition against the State of Arizona’s challenge.

That ban, which was initially temporary, became permanent in 1975. See 
Voting Rights Act Amendments of 1975, § 102, Pub. L. No. 94-73, 89 Stat. 400, 
400 (codified as amended at 42 U.S.C. § 1973aa (2006)).

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Even assuming that Arizona's test had not been adopted or administered 

invidiously and that the state’s own education system was free from 

unconstitutional discrimination, Congress could permissibly conclude that due to 

discrimination elsewhere “the use of literacy tests anywhere within the United 

States has the inevitable effect of denying the vote to members of racial minorities 

whose inability to pass such tests is the direct consequence of previous 

governmental discrimination in education.” Id. at 235 (Brennan, J., joined by 

White and Marshall, JJ.); see also id. at 133 (Black, J.) (Congress can address the 

nationwide effects of “educational inequality); id. at 147 (Douglas, J.) (Congress 

could act given that tests had been “used at times as a discriminatory weapon”); id. 

at 216 (Harlan, J.) (the “danger of [constitutional] violation” justified 

congressional action “[d]espite the lack of evidence” in some jurisdictions); id. at 

283-84 (Stewart, J., joined by Burger, C.J., and Blackmun, J.) (unequal educational 

opportunities meant the tests “work[ed| unfairly against Negroes in practice”; the 

justification for a nationwide ban “need not turn” on proof of discrimination “in 

every State”). Notably, in neither Gaston County nor Oregon v. Mitchell was 

Congress limited to providing relief only to those citizens who could show that 

racial discrimination in the education system was a but-for cause of their inability 

to pass a fairly administered literacy test. The literacy test was permissibly

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suspended even as to those aspiring voters who had never been victims of 

unconstitutional discrimination themselves.

c. Congressional power to forbid voting-related practices not proven 

themselves to be discriminatory in order to provide minority citizens with the 

ability to prevent future discrimination outside the electoral process. The same 

year that the Supreme Court decided South Carolina v. Katzenbach, it also upheld 

Congress’s decision under Section 4(e) of the VRA to override state statutory 

requirements for literacy in English as applied to citizens who attended American- 

flag schools where English was not the primary language of instruction. 

Katzenbach v. Morgan, 384 U.S. 641 (1966). In finding that Section 4(e) 

represented an appropriate use of Congress’s Fourteenth Amendment enforcement 

powers, the Court did not base its ruling on the existence of “some evidence 

suggesting that prejudice played a prominent role in [New York’s] enactment of 

the [English literacy] requirement,” id. at 654, and did not “confine” itself to 

asking whether Congress had aimed only “at the elimination of an invidious 

discrimination in establishing voter qualifications,” id. at 653-54. Instead, the 

Court adopted a markedly more capacious approach to Congress’s enforcement 

power, viewing Section 4(e)’s protection of voting rights as a measure also to 

secure “nondiscriminatory treatment by government” in “the provision or

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administration of governmental services, such as public schools, public housing 

and law enforcement.” Id. at 652.

3. The Supreme Court has upheld the broad treatment of voting-related 

regulations under VRA Section 2 as an appropriate exercise of congressional 

enforcement powers. While Congress singled out literacy tests for special 

treatment under the VRA. it also enacted a more categorical ban on state practices 

that deny or abridge the right to vote. Instead of setting out an exhaustive, or 

exclusive, list of forbidden restrictions, Section 2 declares that “[«]o voting 

qualification or prerequisite to voting or standard, practice, or procedure shall be 

imposed or applied by any State or political subdivision in a manner which results 

in a denial or abridgement of the right of any citizen of the United States to vote on 

account of race or color [or membership in a language minority group.]” 42 

U.S.C. § 1973(a) (emphasis added). 7 In 1982, Congress amended Section 2 to 

reach practices that had a discriminatory result regardless of the purpose for which 

they were enacted or maintained. As amended, Section 2 has been used to reach a

The question before this court thus is not whether Congress could use its 
enforcement powers to enact a statute banning only offender disenfranchisement 
laws. Offender disenfranchisement statutes undeniably impose a voting 
qualification, and thus fall within the express scope of Section 2. So the question 
is simply whether Congress could treat offender disenfranchisement laws the same 
way it treats all other laws restricting the franchise: namely, forbidding their use 
when, “based on the totality of circumstances,” 42 U.S.C. § 1973(b), they violate 
the “results test.”

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wide range of practiees that are not expressly identified in the text of the statute. 

See infra pages 23-24 (discussing some of these cases).

The Supreme Court early on summarily affirmed a district court decision 

upholding the constitutionality of amended Section 2, see Mississippi Republican 

Executive Committee v. Brooks, 469 U.S. 1002 (1984), and has repeatedly applied 

Section 2 without requiring proof of an unconstitutional purpose. See, e.g., 

Thornburg v. Gingles, 478 U.S. 30 (1986); Chisom v. Roemer, 501 U.S. 380 

(1991); LULAC v. Perry, 548 U.S. 399 (2006). That is hardly surprising, given the 

Court's earlier holding in City o f Rome v. United States, 446 U.S. 156 (1980), that 

“under the Fifteenth Amendment, Congress may prohibit voting practices that have
o

only a discriminatory effect.” Id. at 175.

It is a bit of an exaggeration to state that “section 2’s constitutionality 
remains an open question.” Farrakhan /, 359 F.3d at 1124 (Kozinski, J., 
dissenting). Indeed, in the very concurrence in Bush v. Vera, 517 U.S. 952 (1996), 
to which Chief Judge Kozinski points, Justice O’Connor noted that lower federal 
courts “have unanimously affirmed [the results test’s] constitutionality,” id. at 991, 
and concluded that the general presumption in favor of constitutionality was

bolstered by concerns of respect for the authority of Congress under 
the Reconstruction Amendments. See City o f Rome v. United States,
446 U.S. 156, 179 (1980). The results test of § 2 is an important part 
of the apparatus chosen by Congress to effectuate this Nation's 
commitment “to confront its conscience and fulfill the guarantee of 
the Constitution” with respect to equality in voting. S. Rep. No. 97- 
417, p. 4 (1982). Congress considered the test “necessary and 
appropriate to ensure full protection of the Fourteenth and Fifteenth 
Amendments rights.” Id., at 27. It believed that without the results 
test, nothing could be done about “overwhelming evidence of unequal 
access to the electoral system,” id., at 26, or about “voting practices

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4. In light of the analytic framework provided by the Supreme Court’s 

decisions, reaching the conclusion that Congress has the power to include felon 

disenfranchisement laws within Section 2 of the VRA is straightforward.

First, as with literacy tests, some felon disenfranchisement laws were 

themselves adopted or maintained for racially discriminatory purposes. Alabama’s 

law was unanimously struck down by the Supreme Court in Hunter v. Underwood 

on exactly this ground, and other states’ laws were similarly tainted. See Cotton v. 

Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (the design of the Mississippi offender 

provision in effect from 1890 to 1968 “was motivated by a desire to discriminate 

against blacks”); Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896) (the Mississippi 

constitutional convention “swept the circle of expedients to obstruct the exercise 

of the franchise by the negro race” in picking the offenses which would trigger 

disenfranchisement). A recent comprehensive study tracing the origins of felon 

disenfranchisement notes that while the practice began in the 1840s, a “second

and procedures [that ] perpetuate the effects of past purposeful 
discrimination,” id., at 40. And it founded those beliefs on the sad 
reality that “there still are some communities in our Nation where 
racial politics do dominate the electoral process.” Id., at 33. Respect 
for those legislative conclusions mandates that the § 2 results test be 
accepted and applied unless and until current lower court precedent is 
reversed and it is held unconstitutional.

Id. at 992; see also United States v. Blaine County, 363 F.3d 897, 909 (9th Cir. 
2004) (“hold[ ing] that the results test is a constitutional exercise of Congress’ 
Fourteenth and Fifteenth Amendment enforcement powers”), cert, denied, 544 
U.S. 992 (2005).

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wave of restrictions occurred in the South after the Civil War, in some cases 

following passage of the Fifteenth Amendment and extension of voting rights to 

African American men.” Jeff Manza and Christopher Uggen, Locked Out: Felon 

Disenfranchisement and American Democracy 51 (2006). See generally id. at 41- 

68 (tracing the relationship between race and felon disenfranchisement laws). 

Laws like Alabama’s would violate VRA Section 2 under any construction of the 

statute. That not all such statutes have been challenged and that some of them 

have thankfully been repealed or amended without the need for litigation has no 

bearing on Congress’s power to reach them.

Second -  and of special salience to this case -  the literacy test decisions 

demonstrate that Congress can use its enforcement power to prohibit the use of 

voting qualifications that “perpetuate” discrimination coming from outside the 

electoral system. Gaston County, 395 U.S. at 297. Chief Judge Kozinski’s 

skepticism about Congress’s power to reach offender disenfranchisement statutes 

rested on his assumption that there was not “a shred of evidence of intentional 

discrimination in Washington’s criminal justice system.” Farrakhan /, 359 F.3d at 

1117. But the constitutional question is not whether Washington State’s criminal 

justice system violates the equal protection clause, but rather whether Congress 

could conclude that there is a plausible risk that offender disenfranchisement laws 

perpetuate discrimination outside the electoral process. The evidence below

2 2



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supports finding such a risk. On remand, the district court found abundant and 

“compelling evidence of racial discrimination and bias in Washington's criminal 

justice system.” Farrakhan v. Gregoire, 2006 U.S. Dist. LEXIS 45987, *17 (E.D. 

Wash. 2006). That evidence showed an overrepresentation of minority citizens at 

every stage of the criminal justice system from treatment by the police during 

initial encounters through arrest, conviction, sentencing, and incarceration that was 

inexplicable by reference to any nondiscriminatory factors. Just as educational 

inequality provided a sufficient basis for Congress to ban literacy tests that 

interacted with that discrimination to exclude minority voters, so too inequities in 

the criminal justice system can provide a sufficient basis for Congress to prohibit 

the use of offender disenfranchisement provisions that result in a disproportionate 

exclusion of minority citizens. And as was true with respect to literacy tests, 

application of that ban does not depend on an aspiring voter proving that 

unconstitutional conduct was a but-for cause of his own exclusion.

Third, the fact that Section 2 might reach some offender disenfranchisement 

provisions that have a discriminatory result even though they are tainted neither by 

a discriminatory purpose themselves nor by unconstitutional discrimination 

elsewhere poses no constitutional difficulty. See Blaine County, 363 F.3d at 907- 

09 (holding that § 2 can prohibit practices that have a discriminatory result without 

any proof of unconstitutional purpose in the specific case). Courts have used the

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results test of VRA Section 2 to invalidate a wide variety of practices ranging from 

restrictive registration requirements, see, e.g., Mississippi State Chapter, Operation 

PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), to polling place locations, 

see, e.g., Brown v. Dean, 555 F. Supp. 502, 505-06 (D.R.I. 1982), to at-large 

elections, Blaine County, 363 F.3d at 910-15, without tying those practices directly 

to unconstitutional discrimination in the defendant jurisdiction. See also Ellen 

Katz, Not Like the South? Regional Variation and Political Participation Through 

the Lens o f Section 2, in Voting Rights Act Reauthorization of 2006: Perspectives 

on Democracy, Participation and Power 183, 192 (Ana Flenderson ed. 2007) 

(noting that since 1982 there have been more than forty published opinions in 

lawsuits challenging election administration procedures), .lust as Congress had the 

constitutional power to reach particular voter registration requirements or electoral 

practices under the results test without first requiring proof that the defendant 

jurisdiction itself has engaged in unconstitutional conduct, so too. Congress has the 

power to bring offender disenfranchisement provisions within the scope of VRA 

Section 2's totality-of-the-circumstances results test. Of course, at the end of the 

day, a court might conclude that a particular offender disenfranchisement law 

passes statutory muster despite there being some disparate impact, in the same way 

that other practices have been upheld despite some racial disparity. But that is a

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far cry from exempting the law from scrutiny under VRA Section 2 as a matter of 

constitutional avoidance.

5. Contrary to the concerns raised by Chief Judge Kozinski’s earlier dissent, 

see Farrakhan /, 359 F.3d at 1122-25, nothing in the Supreme Court's decision in 

City o f Boerne v. Flores, 521 U.S. 507 (1997), undermines the conclusion that 

Congress has the power to address offender disenfranchisement statutes that have 

discriminatory results. In Boerne, the Supreme Court held that Congress’s power 

under Section 5 of the Fourteenth Amendment must be congruent and proportional 

to the constitutional violation Congress aims to remedy. Id. at 520. But Boerne 

does not itself limit in any way the broad powers Congress enjoys in light of the 

decisions in South Carolina v. Katzenbach and City o f Rome to enforce the 

Fifteenth Amendment. Nor, in light of the Court’s subsequent decisions, does City 

o f Boerne actually diminish Congress’s power under even the Fourteenth 

Amendment to retain a results test in voting cases.

In City o f Boerne itself, the Court expressly pointed to the VRA -  and its 

suspension of literacy tests without regard to proof of purposeful discrimination in 

a particular jurisdiction -  as an example of appropriate enforcement legislation. 

See 521 U.S. at 518, 525-28. And two years after City o f Boerne, the Supreme 

reaffirmed that Boerne had not affected its analysis of Congress’s ability to 

prohibit practices with a discriminatory effect on voting eligibility. In Lopez v.

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Monterey County, 525 U.S. 266 (1999), the Court cited both Katzenbach and City 

o f Rome to show Congress’s broad enforcement power under the Fifteenth 

Amendment. Id. at 283. Indeed, even the Lopez dissent accepted that Katzenbach 

and City o f Rome “compared Congress’ Fifteenth Amendment enforcement power 

to its broad authority under the Necessary and Proper Clause.” Id. at 294 (Thomas, 

.1., dissenting).

Thus, this court should follow the longstanding rule that Supreme Court 

decisions “remain binding precedent” unless that Court itself “see[s| fit to 

reconsider them.” Hohn v. United States, 524 U.S. 236, 252-53 (1998). Courts of 

appeals are not permitted to steal a march on potential doctrinal change. In 

Rodriguez de Quijas v. Shearson/'American Express Inc., 490 U.S. 477 (1989), for 

example, even though the Supreme Court ultimately overruled a prior decision, it 

stopped along the way to criticize the Fifth Circuit, which should not “on its own 

authority" have “taken the step of renouncing” the earlier decision. “If a precedent 

of this Court has direct application in a case,” the Supreme Court emphasized, 

other courts “should follow the case which directly controls,” rather than adopting 

a contrary analysis resting on “some other line of decisions.” Id. at 484.

6. In any event, the VRA’s results test satisfies City o f Boerne's 

“congruence and proportionality standard.” The Supreme Court has consistently 

upheld civil rights legislation that reaches government action having a racially

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disparate impact as being within Congress’s power under Section 5 of the 

Fourteenth Amendment. This reflects a pragmatic realization that '‘the search for 

the "actual’ or the ‘primary’ purpose of a statute is likely to be elusive.” Michael 

M. v. Superior Court, 450 U.S. 464, 469-70 (1981). Thus, Congress can justifiably 

conclude that the costs of requiring this inquiry are unwarranted, at least in cases 

where the challenged practice violates the results test. See also Gingles, 478 U.S. 

at 44 (explaining that Congress adopted the results test after concluding that an 

intent test “is unnecessarily divisive because it involves charges of racism on the 

part of individual officials or entire communities” and “places an inordinately 

difficult burden of proof on plaintiffs” (internal quotation marks omitted)).

In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme Court found that 

the extension of Title VII’s antidiscrimination protections to state government 

employees constituted a valid abrogation of state sovereign immunity, as Congress 

could override states’ immunity from suit in order to “enforce!e] the substantive 

guarantees of the Fourteenth Amendment.” Id. at 448. The Supreme Court had 

already interpreted Title VII to reach practices with a disparate impact as well as 

those involving a discriminatory purpose. See Griggs v. Duke Power Co., 401 U.S. 

424, 432 (1971). While Bitzer itself involved a facially discriminatory practice -  

gender-based differences in eligibility for retirement -  in Connecticut v. Teal, 457 

U.S. 440 (1982), the Court found state liability for a pure disparate impact Title

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VII claim. Any suggestion that Congress cannot reach practices with a 

discriminatory impact under the Boerne standard would thus require rejecting 

Bitzer and Teal.

Congress’s authority to enact results tests is reinforced by the Court’s post- 

Boerne decisions. In Nevada Department o f Human Resources v. Hibbs, 538 U.S. 

721 (2003), the Court applied the Boerne standard in upholding the Family and 

Medical Leave Act of 1993. The Court found that the requirement that states 

provide employees with unpaid leave to care for family members represented 

appropriate Fourteenth Amendment-based legislation to remedy and prevent sex 

discrimination. While Congress had before it evidence of intentional 

discrimination in state employment and of differential maternity and paternity 

leave policies, see 538 U.S. at 730-32, the Court pointed to no direct evidence of 

intentional official discrimination with respect to other familial leave policies. Nor 

did it identify evidence that Nevada itself had e 'e r acted unconstitutionally. 

Nonetheless, the record in Hibbs was sufficient to justify congressional action that 

went beyond equalizing maternity and paternity leave to requiring government 

employers to provide all workers with gender-neutral caretaking leave.

In a similar vein, the national record of intentional racial discrimination in 

voting is also sufficient to permit Congress to subject all voting qualifications to 

Section 2’s results test without requiring that Congress first amass a record of past

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discrimination with regard to every particular voting qualification that falls within 

the scope of Section 2. That point is already well established. For example, 

courts, including this one, have entertained claims that punch card ballot systems 

violate Section 2, despite the absence of any discussion of these systems in the 

legislative record. See, e.g., Southwest Voter Registration Education Project v. 

Shelley, 344 F.3d 914, 918-19 (9th Cir. 2003) (en banc) (recognizing, in the 

context of proceedings for a preliminary injunction, the availability of such a 

claim). If the VRA can reach claims involving punchcard ballots, it can reach 

claims regarding offender disenfranchisement statutes too. As Justice Scalia, who 

has generally adopted a restrictive view of congressional enforcement power 

explained in his dissent in Tennessee v. Lane, 541 U.S. 509 (2004), ”[g]iving § 5 

more expansive scope with regard to measures directed against racial 

discrimination by the States” fulfills the principal purpose of the Fourteenth 

Amendment.” Id. at 561. He would accordingly leave it to Congress, under 

constraints no tighter than those of the Necessary and Proper Clause, to decide 

what measures are appropriate under § 5 to prevent or remedy racial discrimination 

by the States.” Id. at 564. Thus, nothing in Boerne or the subsequent cases 

applying its analysis suggests new limits on Congress’s power to reach voting 

qualifications or regulations that have a disparate racial impact.

29



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CONCLUSION

In addressing the question whether Washington State’s felon 

disenfranchisement statute violates Section 2 of the Voting Rights Act, this court 

should recognize Congress’s power under the enforcement clauses to reach voting 

qualifications, including offender disenfranchisement statutes, that result in 

minority citizens having less opportunity to participate in the political process.

Respectfully submitted,

Thomas C. Goldstein 
Akin Gump Strauss Hauer & Feld LLP 
1333 New Hampshire Ave., NW 
Washington, D.C. 20036 
Washington, DC 20036

s/  Pamela S. Karlan 
Pamela S. Karlan 
Jeffrey L. Fisher 
Stanford Law School Supreme

Court Litigation Clinic 
559 Nathan Abbott Way 
Stanford, CA 94305 
(650) 7235-4851

Counsel for Amici Curiae

June 10,2010

30



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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 
LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE

REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R. App. P. 32 

and this Circuit’s Rule 29-2(c)(3) because this brief contains 6,995 words, 

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and 

thus falls below the limit of 7,000 words.

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief was prepared in a double-spaced, 14 point, proportionally spaced font (Times 

New Roman for Word).

/ s/ Pamela S. Karl an 
Pamela S. Karlan 
Counsel for Amici Curiae

■ st!

I



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CERTIFICATE OF SERVICE

When Not All Case Participants are Registered for the 
Appellate CM/ECF System

U.S. Court of Appeals Docket Number(s): 06-35669

l hereby certify that I electronically filed the foregoing with the Clerk of the Court 
for the United States Court of Appeals for the Ninth Circuit by using the appellate 
CM/ECF system on June 10, 2010.

Participants in the case who are registered CM/ECF users will be served by the 
appellate CM/ECF system.

1 further certify that some of the participants in the case are not registed CM/ECF 
users. I have mailed the foregoing document by First-Class mail, postage prepaid, 
to the following non-CM/ECF participants:

Juan Cartagena, Esq.
Community Service Society 
105 East 22 Street 
NY. NY 10010

Daniel F. Kolb, Esq.
Davis Polk & Wardwell LEP 
450 Lexington Avenue 
New York, NY 10017

/s/ Pamela S. Karl an 
Counsel for Amici

2



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CERTIFICATE FOR BRIEF IN PAPER FORMAT

(attach this certificate to the end o f each paper copy brief 

9th Circuit Case Numbcr(s): 06-35669

I, Pamela S. Karlan, certify that this brief is identical to the version submitted 
electronically on June 10, 2010.

Date: June 10,2010

Signature: /s/ Pamela S. Karlan

3



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No. 06-35669

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MUHAMMED SHABAZZ FARRAKHAN,
A/K/A ERNEST S. WAEKER-BEY; et al.,

Plaintiffs-Appellants,

versus

CHRISTINE O. GREGOIRE; et al.,

Defendants-Appellees.

Appeal From a Judgment of the United States District Court for the 
Eastern District of Washington,

No. CV-96-076-RHW
The Honorable Robert H. Whaley, Judge Presiding

BRIEF OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS, EQUAL JUSTICE SOCIETY,

LEGAL SERVICES FOR PRISONERS WITH CHILDREN, AND 
AMERICAN PAROLE AND PROBATION ASSOCIATION 

AS AMICI CURIAE IN SUPPORT OF 
PLAINTIFFS-APPELLANTS ON REHEARING EN BANC

WlIITTY SOMVICHIAN
K y l e  C. W ong  
K e l l y  C o o k e  
T y l e r  O n it s u k a  
C o o l e y  L L P
101 California Street, 5th Floor 
San Francisco, CA 94111 
(415) 693-2000 (telephone) 
(415) 693-2222 (facsimile) 
Attorneys for Amici Curiae



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TABLE OF CONTENTS

Page

STATEMENT OF CORPORATE DISCLOSURE................................................. vi
STATEMENT OF INTEREST..................................................................................1
INTRODUCTION.....................................................................................................3
ARGUMENT.............................................................................................................6
I. THE IMPACT OF DISENFRANCHISEMENT ON THE

REHABILITATION OF AFFECTED INDIVIDUALS AND ON THE
BROADER COMMUNITY MUST BE CONSIDERED AS PART
OF SECTION 2’S “TOTALITY OF CIRCUMSTANCES’' INQUIRY......6
A. Disenfranchisement undermines the successful reintegration of 

prisoners and perpetuates the loss of voting rights among the
racial minorities who are disproportionately impacted........................8
1. Voting rights are an integral part of successfully

rehabilitating prisoners and reintegrating them back into 
their communities....................................................................... 8

B. Upholding Washington's disenfranchisement law would
perpetuate a cycle of recidivism and undermine public safety......... 12

II. WASHINGTON STATE’S DISENFRANCHISEMENT LAW HAS
A BROAD NEGATIVE IMPACT ON THE VOTING POWER OF
MINORITY COMMUNITIES......................................................................16
A. Confusion about disenfranchisement laws results in denying the

franchise to citizens who are eligible to vote..................................... 16
B. Washington State’s law disenfranchises a huge number of

individuals..........................................................  20
C. Washington’s disenfranchisement law undermines political

participation across entire minority communities and not just 
among disenfranchised prisoners....................................................... 22

D. These cascading effects of the disenfranchisement laws deprive
minority communities of political power and undermine the 
political process as a whole................................................................ 26

CONCLUSION....................................................................................................... 29

- i -



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TABLE OF AUTHORITIES

Page(s)
C ases

Farrakhan v. Gregoire,
590 F.3d 989 (9th Cir. 2010).......................................................................passim

Farrakhan v. Gregoire,
No. CV-96-076-RHW, 2006 WL 1889273 (E.D. Wash. July 7, 2006)........ 4, 12

Reynolds v. Sims,
377 U.S. 533 (1964)..............................................................................................8

Thornburg v. Gingles,
478 U.S. 30(1986)..................................................................................3,4, 7, 30

Trop v. Dulles,
356 U.S. 86 (1958)...............................................................................................13

United States v. K,
160 F.Supp.2d 421 (E.D.N.Y. 2001).................................................................. 13

Statutes

Voting Rights Act of 1965 (“VRA”), 42 U.S.C. § 1973 ................................. passim

R ules

Federal Rule of Appellate Procedure 32(a)(7)......................................................... 32

Ninth Circuit Rule 29-2(b)....................................................................................... 32

O ther  A uthorities

American Bar Association (ABA), ABA Standards for Criminal Justice:
Collateral Sanctions and Discretionary Disqualification o f Convicted 
Persons (3rd ed. 2004).........................................................................................13

American Civil Liberties Union (ACLU), Legislature Reforms Voting Rights
Restoration (Apr. 22, 2009).................................................................................19

Fowler, James H., Turnout in a Small World, So c ia l  L o g ic  OF Po l it ic s
(2005).................................................................................................................. 23

-ii-



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TABLE OF AUTHORITIES 
(continued)

Page(s)

G erber, A lan  S., et a/., A PS A , Social Pressure and Voter Turnout: Evidence 
from a Large-Scale Field Experiment, 102 A m . POLITICAL SCI. R e v . 33 
(2008).............................................................................................................22, 23

Goldman, Daniel S., The Modern-Day Literacy Test?: Felon
Disenfranchisement and Race Discrimination, 57 STANFORD L. Re v . 611
(2004) .................................................................................................... 18, 20, 27

Hajnal, Zoltan, & Jessica Trounstine, Where Turnout Matters: The
Consequences o f Uneven Turnout in City Politics, 67 The J. OF POL. 515
(2005) ............................................................................................................27,28

Harris, Maya, ACLU, Making Every Vote Count: Reforming Felony
Disenfranchisement Policies and Practices in California (Sept. 2008).......6, 18

Johnson, Robert M.A., National District Attorneys Association, Message
from the President: Collateral Consequences (May/June 2001)..................... 15

Karlan, Pamela S., Convictions and Doubts: Retribution, Representation, 
and the Debate Over Felon Disenfranchisement, 56 STAN. L. Rev. 1147 
(2003)........................................................................................................... 17, 29

King, Ryan S., The Sentencing Project, A Decade o f Reform: Felony
Disenfranchisement Policy in the United States (Oct. 2006)............................ 14

King, Ryan S„ & Marc Mauer, The Sentencing Project, The Vanishing Black
Electorate: Felony Disenfranchisement in Atlanta, Georgia (Sept. 2004).......21

Mauer, Marc, The Sentencing Project, The Crisis o f the Young African
American Male and the Criminal Justice System (Apr. 1999).......................... 27

McLeod, Aman, Ismail K. White, & Amelia R. Gavin, The Locked Ballot 
Box: The Impact o f State Criminal Disenfranchisement Laws on African 
American Voting Behavior and Implications for Reform, 11 Va. J. So c .
Po l ’y  & L. 66 (2003)................................................................................5, 24, 25

-in-



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TABLE OF AUTHORITIES 
(continued)

Page(s)

Mitchell, S. David, Undermining Individual and Collective Citizenship: The 
Impact o f Exclusion Laws on the African-American Community, 34 
F o r d h a m  U r b . L. J. 833 (2007)........................................................................ 27

Moore, Solomon, States Restore Voting Rights for Ex-Convicts, but Issue
Remains Politically Sensitive, N.Y. Times, Sept. 14, 2008............................... 10

Ochs, Holona L., “Colorblind” Policy in Black and White: Racial
Consequences o f Disenfranchisement Policy, 34 The Pol’y Stud. J. 81 
(2006)..............................................................................................................9, 26

Parkes, Debra, Ballot Boxes Behind Bars: Toward the Repeal o f Prisoner
Disenfranchisement Laws, 13 Temp. Pol. & Civ. Rts. L. Rev. 71 (2003) ..28, 29

Roberts, Dorothy E., The Social and Moral Cost o f Mass Incarceration in
African American Communities, 56 St a n . L. R e v . 1271 (2004)................ 23, 27

Scores o f Felons Voted Illegally, Seattle T imes, Jan. 23, 2005........................... 19

Staples. Brent. How Denying the Vote to Ex-Offenders Undermines
Democracy, N.Y. T imes! Sept. 17, 2004......................................................22, 23

Tyler, Tom R., Psychological Perspectives on Legitimacy and Legitimation,
57 A n n . R e v . P s y c h o l . 375 (2006).................................................................. 29

Uggen, Christopher, & Jeff Manza, Lost Voices: The Civic and Political
Views o f Disenfranchised Felons (July 9, 2002)...........................................8, 11

Uggen, Christopher, & Jeff Manza, Voting and Subsequent Crime and 
Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L.
R e v . 193(2004)..............................................................................................9, 14

Uggen, Christopher, Jeff Manza, & Angela Behrens, “Less than the average 
citizen ”: Stigma, Role Transition and the Civic Reintegration o f 
Convicted Felons in A f t e r  C r im e  a n d  Pu n is h m e n t : Pa t h w a y s  TO 
O f f en d e r  R e in t eg r a t io n  258 (2004)............................................................. 11

- iv -



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TABLE OF AUTHORITIES 
(continued)

Page(s)

Washington State Sentencing Guidelines Commission, Disproportionality
and Disparity in Adult Felony Sentencing (2003)..............................................21

Wicklund, Carl, Executive Director of the American Probation and Parole 
Association, Testimony in support of H.R. 3335 before the House 
Judiciary Subcommittee on the Constitution, Civil Rights, and Civil 
Liberties, U.S. House of Representatives (Mar. 16, 2010)............................ 9, 15

Wood, Erika, Brennan Ctr. for Justice, Restoring the Right to Vote (2d ed.
2009)....................................................................................................... 10, 13, 15



STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae the 

Lawyers’ Committee for Civil Rights, Equal Justice Society, Legal Services for 

Prisoners with Children, and American Parole and Probation Association, by and 

through their undersigned counsel, state that they are non-profit organizations and 

therefore not publicly held corporations that issue stock.

Case: 06-35669 06/11/2010 Page: 7 of 39 ID: 7370116 DktEntry: 125

Dated: June 11, 2010 COOLEY LLP

Byj_ /s/ Whitty Somvichian___________
Whitty Somvichian 
wsomviehian@cooley.com 
Kyle Wong 
kwong@cooley.eom 
101 California Street, 5th Floor 
San Francisco, CA 94111-5800 
Phone (415) 693-2000 
Fax: (415)693-2222

Attorneys for Lawyers ’ Committee For 
Civil Rights, Equal Justice Society, Legal 
Services For Prisoners With Children, And 
American Parole And Probation 
Association

- V I -

mailto:wsomviehian@cooley.com
mailto:kwong@cooley.eom


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STATEMENT OF INTEREST

Amici curiae supporting this brief have first-hand experience in assisting 

current and former prisoners in various contexts and bring a direct perspective on 

how these individuals and their communities are affected by disenfranchisement. 

Although approaching the issue of felon disenfranchisement from different 

perspectives, amici agree that Washington’s statute: (1) harms the rehabilitation 

and reentry of prisoners and formerly incarcerated individuals and (2) deprives 

minority communities of political power, thus undermining the political process as 

a whole. Both parties have consented to the filing of this amicus brief.

The Lawyers' Committee for Civil Rights of the San Francisco Bay Area 

(“Lawyers’ Committee”) is a civil rights and legal services organization devoted to 

advancing the rights and economic opportunities of people of color, immigrants 

and refugees, with a special commitment to the African-American community. 

Throughout its history, the Lawyers Committee has dedicated itself to ensuring 

access to the franchise, particularly for the most vulnerable individuals and groups 

in our society. The Lawyers’ Committee has successfully litigated a number of 

challenges to discriminatory voting practices as violating the Voting Rights Act.

The Equal Justice Society (“EJS”) is a national legal organization that 

promotes a vision of a society where race is no longer a barrier to opportunity. 

EJS’s members and constituents are scholars, advocates, and citizens working to

1 .



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advance civil rights and racial justice. To achieve its vision, EJS has long been 

active in a number of criminal justice and voting reform initiatives and cases. 

Washington State’s disenfranchisement law epitomizes the type of racial barriers 

against which EJS fights.

Legal Services for Prisoners with Children (“LSPC”) is a non-profit 

organization with a long history of combating the hurdles that prisoners, former 

prisoners, and their family members face every day. In the past decade, LSPC has 

undertaken voter registration drives in various minority communities that are 

hardest hit by disenfranchisement laws. LSPC has also litigated several cases 

aimed at clarifying and enforcing the right to vote for those in and out of prison. 

Through such programs, the LSPC has gained extensive knowledge of the kinds of 

harm that laws like Washington’s create -  not only for the individuals 

disenfranchised, but their families and communities as well.

The American Probation and Parole Association (“APPA”) is an 

international non-profit, based in Lexington, Kentucky, which is composed of 

members from the United States, Canada, and other countries who work in 

probation, parole, and community-based corrections. Members of APPA supervise 

millions of Americans on probation or parole throughout the country (including 

Washington State) and its members see firsthand the barriers faced by those 

attempting to start their lives over after incarceration. APPA recognizes that the

2 .



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right to vote is integral to successful rehabilitation and reintegration, and supports 

the restoration of voting rights after release from prison.

INTRODUCTION

The Court should reverse the District Court's decision and affirm the Circuit 

Panel’s decision because Washington's disenfranchisement law has a dramatic and 

discriminatory impact on the voting rights of minorities in violation of the Voting 

Rights Act of 1965 (“VRA”). Section 2 of the VRA reads in pertinent part:

(a) No voting qualification or prerequisite to voting or standard, practice, or 
procedure shall be imposed or applied [ . . . ] in a manner which results in a 
denial or abridgement of the right of any citizen of the United States to vote 
on account of race or color . . . .

(b) A violation of subsection (a) of this section is established if, based on 
the totality of circumstances, it is shown that ... members [of protected 
minorities] have less opportunity than other members of the electorate to 
participate in the political process and to elect representatives of their 
choice.

42 U.S.C. § 1973 (emphasis added). Given this statutory mandate to consider the 

“totality of circumstances,” the Supreme Court has directed courts to carefully 

examine whether and how a challenged statute “interacts with social and historical 

conditions to cause an inequality in the opportunities enjoyed by black and white 

voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 

47 (1986) (emphasis added). In particular, the Court has held that the viability of a 

VRA claim may be assessed utilizing relevant factors including “the extent to 

which members of the minority group. . . bear the effects of past discrimination”
3.



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and whether “the poliey underlying the State’s . . .  use of the contested practice or 

structure is tenuous.” Id. at 44-45. The District Court here, however, failed to 

account for these and other factors, which collectively confirm the Voting Rights 

Act violation in this case.

Amici respectfully present this brief to provide this Court with further 

background on how the “surrounding social circumstances” interact with 

Washington's disenfranchisement law to undermine the voting rights of the 

individuals directly affected and minority communities as a whole. Through years 

of firsthand experience, amici have seen how denying voting rights to current and 

former prisoners inevitably saps the political efficacy of the communities of which 

these individuals are a part.

Significantly, a host of research unequivocally shows that depriving 

prisoners of their voting rights seriously undermines successful reintegration and 

rehabilitation. Unsurprisingly, multiple studies have also shown, based on 

concrete statistical data, that disenfranchisement contributes to higher recidivism 

rates. Washington’s disenfranchisement law thus contributes to trapping affected 

minorities in a criminal justice system that has already been found in this case to be 

infected with systemic racial bias and discrimination. See Farrakhan v. Gregoire, 

No. CV-96-076-RHW, 2006 WL 1889273 at *6 (E.D. Wash. July 7, 2006) (finding 

that Plaintiffs had presented “compelling evidence of racial discrimination and bias

4.



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in Washington’s criminal justice system”). The result is a vicious cycle that 

perpetuates and compounds the loss of voting rights among the minority 

individuals who disproportionately bear the brunt of the Washington statute.

The harms wrought by Washington’s law are not limited to the individuals 

directly barred from the voting booth, however. As this Court has already noted, 

“almost a quarter of otherwise qualified African American men in Washington 

were disenfranchised” under the Washington statute. Farrakhan v. Gregoire, 590 

F.3d 989, 1016 (9th Cir. 2010). But even those stark numbers do not tell the full 

story. As confirmed in multiple scientific studies, disenfranchisement creates 

strong rippling effects beyond the impacted prisoners because individuals deprived 

of their voting rights can greatly depress the voting rates of those around them.1 In 

this way, the disproportionate impact of Washington’s disenfranchisement law on 

minority individuals is directly transferred to minority communities as a whole in 

the form of collective disengagement, that, in turn, robs these communities of their 

political voice. Compounding these problems further, disenfranchisement laws are 

enforced in uneven and confused ways, with even the responsible state agencies 1

1 Aman McLeod, Ismail K.. White, & Amelia R. Gavin, The Locked Ballot Box: 
The Impact o f State Criminal Disenfranchisement Laws on African American 
Voting Behavior and Implications for Reform, 11 Va. J. Soc. Pol’Y & L. 66, 74 
(2003).

5.



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2
unable to consistently articulate state disenfranchisement standards correctly. In 

turn, this leads to further impediments to voting that are felt disproportionately 

among minority communities.

Disenfranchisement laws thus have a cascading impact that starts with the 

affected prisoners and extends through their social circles and into their 

communities at large. As illustrated below, the end result is a weakening of the 

voting power of entire minority groups, such that the affected communities “have 

less opportunity than other members of the electorate to participate in the political 

process and to elect representatives of their choice.” 42 U.S.C. § 1973(b). Given 

this background, amici respectfully submit that the Court should reverse the 

District Court’s opinion and find that Washington's disenfranchisement statute 

violates the VRA.

ARGUMENT

I. THE IMPACT OF DISENFRANCHISEMENT ON THE 
REHABILITATION OF AFFECTED INDIVIDUALS AND ON THE 
BROADER COMMUNITY MUST BE CONSIDERED AS PART OF 
SECTION 2’S “TOTALITY OF CIRCUMSTANCES” INQUIRY

Under Section 2 of the Voting Rights Act, courts must consider “the totality 

of circumstances” in determining whether a challenged voting practice, policy or 

procedure results in members of a protected class having “less opportunity than 2

2 See Maya Harris, ACLU, Making Every Vote Count: Reforming Felony 
Disenfranchisement Policies and Practices in California at 22 (Sept. 2008), 
available at
http://www.aclunc.org/library/publications/asset upload_file228_7648.pdf.

6 .

http://www.aclunc.org/library/publications/asset


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other members of the electorate to participate in the political process and to elect 

representatives of their choice.” 42 U.S.C. § 1973(b). Factors that courts may use 

to evaluate the totality of circumstances include “the extent to which members of 

the minority group. . . bear the effects of discrimination” and whether “the policy 

underlying the State’s . . . use of the contested practice or structure is tenuous.” 

Thornburg, 478 U.S. at 44-45.

As discussed in detail below, both of these factors weigh heavily in favor of 

a finding that Washington's disenfranchisement statute here violates the VRA.

The discriminatory effects of the law are significant as it both works against the 

successful rehabilitation of prisoners and creates a ripple effect that undermines the 

political power and cohesion of minority communities. Moreover, by stilling 

efforts at rehabilitation, the Washington statute will perpetuate the discriminatory 

effects of a criminal justice system that has already been found to be heavily biased 

against racial minorities. See Farrakhan, 590 F.3d at 1009 (noting District Court’s 

finding that it “has no doubt that members of racial minorities have experienced 

racial discrimination in Washington’s criminal justice system”).

7.



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A. Disenfranchisement undermines the successful reintegration of 
prisoners and perpetuates the loss of voting rights among the 
racial minorities who are disproportionately impacted.

1. Voting rights are an integral part of successfully 
rehabilitating prisoners and reintegrating them back into 
their communities.

As the Supreme Court has observed, the right to vote is “a fundamental 

matter” at the core of citizenship because the “right to exercise the franchise ... is 

preservative of all other basic civil and political rights.” Reynolds v. Sims, 377 

U.S. 533, 562 (1964). The benefits of voting run far deeper than simply allowing 

individuals to cast ballots in elections; rather, the right to vote instills “[a] sense of 

political efficacy” that “has long been identified as an important factor stimulating 

participation in civic life” from a broader perspective.'1

Voting thus aids in the successful reintegration of prisoners into society by 

giving individuals a voice in shaping their community and restoring their sense of 

citizenship and self-governance. As explained by the APPA in testimony before 

Congress, “having the right to vote and learning how to exercise that right sends a 3

3 Christopher Uggen & Jeff Manza, Lost Voices: The Civic and Political Views o f 
Disenfranchised Felons at 9-10 (July 9, 2002). This paper was prepared for 
inclusion in T h e  I m pa c t  of In c a r c e r a t io n  on  F a m il ie s  a n d  C o m m u n it ie s , 
edited by Mary Pattillo, David Weiman, and Bruce Western, to be published by the 
Russell Sage Foundation; it is available at 
http://www.socsci.umn.edu/~uggen/Sagechap8.pdf.

8.

http://www.socsci.umn.edu/~uggen/Sagechap8.pdf


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message that |those who have repaid their debt to society] are welcomed back as

integral and valuable members of their home communities.”4

The observations of the APPA, drawn from the direct experience of its law

enforcement members, are echoed in the academic literature. For example,

researchers have found that “[t]he reintegrative effects of voting may have broader

implications,” as “participation in democratic rituals such as elections affirms

membership in the larger community for individuals and groups.”5 Similarly,

recent scholarship in this area indicates that:

People who are a part of the decision making process not only have a 
greater investment in the decisions, but a greater investment in society 
as well. . . . Those who participate in the democratic process have a 
greater investment in the resulting decisions, and more importantly, an 
investment in preserving that process. When the democratic process 
is perceived as fair and unbiased, the legitimacy of democratic 
authority is maintained and compliance with the law is more likely.6

The positive impacts of enfranchisement are best illustrated, though, by the

experiences and words of the affected individuals themselves. For example:

4 Carl Wicklund, Executive Director of the American Probation and Parole 
Association. Testimony in support of Fl.R. 3335 before the House Judiciary 
Subcommittee on the Constitution, Civil Rights, and Civil Liberties, U.S. House of 
Representatives (Mar. 16, 2010). Wicklund's Testimony is available at 2010 
WLNR 5541315.
5 Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: 
Evidence from a Community Sample, 36 C o l u m . H u m . Rts. L. Rev. 193, 195 
(2004).
6 Holona L. Ochs, “Colorblind” Policy in Black and White: Racial Consequences 
o f Disenfranchisement Policy, 34 T h e  P o l ’y  St u d . J. 81, 89 (2006) (internal 
citations omitted).

9.



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David Waller, a citizen of Maryland speaking on the day that a new 
law went into effect restoring his right to vote, explained: “According 
to the state of Maryland I was not a full citizen. In my eyes, 1 was not 
a full citizen. After finishing my sentence for things I had done in the 
past, I was denied the right to vote. And without it, I was not afforded 
all the rights and privileges of citizenship. Today all that changes.
When I walk into the Board of Elections and hand in my signed voter 
registration, 1 will no longer be fragmented from society. I’ll be a 
father, grandfather, uncle, and friend who is able to give more of a 
hand in creating a better place to live, work, and go to school.”7

Given accounts like these, it is no wonder that academics and law enforcement

officials alike have stressed the importance of voting rights as a critical aspect of

successfully reintegrating prisoners into society.

Conversely, disenfranchisement laws like the Washington statute at issue

actively undermine successful rehabilitation by sending a message to those

affected that they are not full citizens and have no voice in their community. The

following personal accounts illustrate starkly the sense of frustration and alienation

that results from depriving people of their voting rights even after they have paid

their debts to society:

• “After you go to prison -  you do your time and they still take all your rights 
away.... You can’t get a job. You can't vote. You can't do nothing even 
10 or 20 years later. You don’t feel like a citizen. You don’t even feel 
human.”8

7 Erika Wood, Brennan Ctr. for Justice, Restoring the Right to Vote at 8-9 (2d ed. 
2009)(available at http://brennan.3cdn.net/5c8532e8134b233182_z5m6ibv 1 n.pdf).
8 Solomon Moore, States Restore Voting Rights for Ex-Convicts, but Issue Remains 
Politically Sensitive, N .Y . T im e s , Sept. 14, 2008, available at 
http://query.nytimes.com/gst/fullpage.html?res=9F0DE2DD1330F937A2575AC0

10.

http://brennan.3cdn.net/5c8532e8134b233182_z5m6ibv
http://query.nytimes.com/gst/fullpage.html?res=9F0DE2DD1330F937A2575AC0


Case: 06-35669 06/11/2010 Page:18of39 ID: 7370116 DktEntry: 125

• “I think that just getting back in the community and being a contributing 
member is difficult enough . . . .  And saying, ‘Yeah, we don’t value your 
vote either because you're a convicted felon from how many years back,’ 
okay? . . . But I, hopefully, have learned, have paid for that and would like to 
someday feel like a, quote, ‘normal citizen, ’ a contributing member o f 
society, and you know that’s hard when every election you’re constantly 
being reminded, ‘oh yeah, that’s right. I'm ashamed.

• “I have no right to vote on the school referendums that will affect my 
children. I have no right to vote on how my taxes is going to be spent or 
used, which I have to pay whether I’m a felon or not, you know? So 
basically I’ve lost all voice or control over my government.”* 10 11

• “|N]ot being able to vote kind of says you don’t matter, and you’re not really 
a part of this community.”11

Indeed, amici can attest (from the experiences of their clients and also their own 

members who have experienced these issues firsthand), that the disillusionment 

that stems from having no voice through voting is a direct and serious consequence 

of the disenfranchisement laws.

In evaluating the “totality of circumstances,” the Court should consider not 

only the voting restrictions imposed by the literal terms of the statute, but also its 

overall effects on prisoners and formers prisoners as illustrated by these personal

A96E9C8B63&scp=2&sq=states%20restore%20voting%20rights%20for%20ex-
convicts&st=cse.
’ IJggen & Manza, Lost Voices, supra note 3, at 17-18 (emphasis added).
10 Id. at 18.
11 Christopher Uggen, Jeff Manza, & Angela Behrens, “Less than the average 
citizen Stigma, Role Transition and the Civic Reintegration o f Convicted Felons 
in A ft er  C r im e  a n d  P u n is h m e n t : Pa t h w a y s  to  O f f e n d e r  R e in t e g r a t io n  258, 
280 (2004), available at
http://www.socsci.umn.edu/~uggen/Uggen_Manza_Behrens_CH_04.pdf.

11.

http://www.socsci.umn.edu/~uggen/Uggen_Manza_Behrens_CH_04.pdf


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accounts. By imposing an ongoing sense of disconnection and disillusionment

with the political process, the Washington statute hinders the ability of racial

minorities to participate in the political process far more dramatically than

suggested by the terms of the statute on its face.

B. Upholding Washington’s disenfranchisement law would 
perpetuate a cycle of recidivism and undermine public safety.

Perhaps the most troubling result of enforcing the Washington statute is that

it would directly contribute to a cycle of recidivism by trapping minorities in a

criminal justice system that the trial court has already been found to be infected

with systemic racial bias and discrimination. See Farrakhan, 2006 WL 1889273 at

*6 (finding that Plaintiffs had presented “compelling evidence of racial

discrimination and bias in Washington’s criminal justice system”).

The correlation between disenfranchisement and increased recidivism is not

surprising, given the negative impact that disenfranchisement has on successful

reintegration and overall civic participation, as noted above. The relationship

between voting and rehabilitation (and between disenfranchisement and

recidivism) has been recognized by jurists, researchers, and law enforcement

officials alike. Indeed, Justice Brennan once declared:

It is perfectly obvious that [revocation of citizenship] constitutes the 
very antithesis of rehabilitation, for instead of guiding the offender 
back into the useful paths of society it excommunicates him and 
makes him, literally, an outcast. 1 can think of no more certain way in 
which to make a man in whom, perhaps, rest the seeds ol serious

12.



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antisocial behavior more likely to pursue further a career of unlawful 
activity than to place on him the stigma of the derelict, uncertain of 
many of his basic rights.

Trop v. Dulles, 356 U.S. 86, 111 (1958) (concurring); See also United States v. K, 

160 F.Supp.2d 421,434 (E.D.N.Y. 2001) (noting that “civil and employment 

disabilities’' like disenfranchisement “frustrate[j the released felon’s attempt to

• • . . 1 9integrate himself or herself baek into society”).

These intuitive observations of Justiee Brennan have been echoed in the

academic research of various voting rights experts. For example:

The intuitive link between civic participation and successful reentry 
thus should not be ignored by policymakers striving to reduce crime. 
Restoring the right to vote sends the message that people are 
welcomed back as integral members of their home communities. It 
invests them in our democracy while reminding them of the reciprocal 
responsibilities that citizens share. Shutting people out of the 
democratic process has the opposite effect: it stymies reintegration by 
treating people with conviction histories as a “pariah class.”1

Multiple researchers have confirmed these observations through statistical

analyses that demonstrate strong correlations between voting and rehabilitation,

and between disenfranchisement and recidivism. These researchers have found

“consistent differences between voters and non-voters in rates of subsequent arrest. 12 13

12“ Cf. American Bar Association, ABA Standards for Criminal Justice: Collateral 
Sanctions and Discretionary Disqualification o f Convicted Persons 35-36 (3rd ed. 
2004), available at
http://www.abanet.org/crimjust/standards/collateralsanetionwithcommentary.pdf 
(counting “deprivation of the right to vote” among the “collateral sanctions” that 
“should never be categorically imposed”).
13 Wood, supra note 7, at 11.

13.

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Case: 06-35669 06/11/2010 Page: 21 of 39 ID: 7370116 DktEntry: 125

incarceration, and self-reported criminal behavior.”14 15 16 17 Most notably, sociologists in 

one study “revealed that persons who voted were less than half as likely to be re­

arrested after release from supervision as persons who did not vote."'*' These 

researchers analyzed the voting behavior of certain groups in the 1996 election and 

the subsequent rates of crime and arrest in those same groups in the subsequent 

period of 1997-2000. These researchers found that between 1997 and 2000, 27 

percent o f nonvoters in the study were rearrested, compared with only 12 percent 

o f people who voted.16 This correlation of voting with rehabilitation is 

unsurprising, “as the desire to vote is an affirmation of the institutions of American 

democracy and demonstrates support for the importance of political expression.” 

Disenfranchisement laws thus impose a direct impediment to effectively deterring 

and preventing recidivism.

Law enforcement officials overwhelmingly share this view. For example, 

Chief John F. Timoney of the Miami Police Department has stated, “|l]t is better to

14 Uggen & Manza, Voting and Subsequent Crime and Arrest, supra note 5, at 213. 
Though acknowledging that factors other than the “single behavioral act of casting 
a ballot” likely impact rehabilitation, these researchers point out that “the act of 
voting manifests the desire to participate as a law-abiding stakeholder in a larger 
society.” Id.
15 Ryan S. King, The Sentencing Project, A Decade o f Reform: Felony 
Disenfranchisement Policy in the United States at 19 (Oct. 2006) (emphasis 
added), available at
http://www.sentencingproject.org/doc/publications/fd_decade_reform.pdf.
16 Id. (emphasis added).
17 Id.

14.

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remove any obstacles that stand in the way of offenders resuming a full, healthy

productive life . . . once you’ve cleared the four walls of the jail, your right to vote

should be restored.” Moreover, the executive director of amicus APPA, an

organization comprised of and representing probation and parole officers with

direct insights on these issues, has testified before Congress that:

[F]ull civic participation and successful rehabilitation are intuitively 
linked. One of the greatest challenges facing those who are coming 
out of prison or jail is the transition from a focus on one’s self as an 
individual that is central to the incarceration experience, to a focus on 
one’s self as a member of a community that is the reality of life in our 
democratic society. While having strong family support and stable 
employment are critical to a person’s successful transformation from 
prisoner to citizen, research has determined that one’s identity as a 
responsible citizen -  including volunteer work, community 
involvement arid voting - plays a vital role.18 19 20

In fact, the APPA has endorsed federal legislation to restore voting rights in federal

elections precisely because “disenfranchisement laws work against the successful

re-entry of offenders.” A national group of District Attorneys has also expressed

similar concerns about the impact that disenfranchisement laws have on

reintegration and rehabilitation.21

18 Wood, supra note 7, at 10.
19 Wicklund, supra note 4, at 3.
20 The APPA Resolution is available at
http://www.appa.net.org/eweb/Dynamicpage.aspx?site=APPA 2&webcode=:IB R 
esolution&wps_key=3c8f5612-9e 1 c-4f60-8e8b-1 bl'46c00138e.
2' See Robert M.A. Johnson, National District Attorneys Association, Message from 
the President: Collateral Consequences (May/June 2001), available at 
http://www.ndaa.org/ndaa/about/president message mayJune_2001 .html

15.

http://www.appa.net.org/eweb/Dynamicpage.aspx?site=APPA
http://www.ndaa.org/ndaa/about/president


Case: 06-35669 06/11/2010 Page: 23 of 39 ID: 7370116 DktEntry: 125

II. WASHINGTON STATE’S DISENFRANCHISEMENT LAW HAS A 
BROAD NEGATIVE IMPACT ON THE VOTING POWER OF 
MINORITY COMMUNITIES

As noted in the Panel's decision, the District Court found not only

“compelling evidence” of discrimination in the criminal justice system but that this 

discrimination “clearly hinders the ability of racial minorities to participate 

effectively in the political process, as disenfranchisement is automatic."

Farrakhan, 590 F.3d at 995. This finding, on its own, shows that Washington’s 

statute violates the Voting Rights Act. But the specific focus on the initial and 

“automatic” disenfranchisement of individuals actually understates the 

discriminatory impact of the Washington statute by failing to account lor a number 

of additional factors that comprise the “totality of circumstances.” These factors 

include (i) confusion in applying the disenfranchisement laws, which exacerbates 

the suppression of voting rights, and (ii) a cascading effect that flows Irom 

disenfranchised individuals to those around them, depressing voter turnout in entire

minority communities.

A. Confusion about disenfranchisement laws results in denying the 
franchise to citizens who are eligible to vote.

Researchers have found that various difficulties in implementing and 

enforcing the disenfranchisement laws often lead to denial ol voting rights, even

(arguing that “collateral consequences” of conviction like disenfranchisement risk 
creating a “subclass of citizens who... have no recourse but to continue to live 
outside the law”).

16.



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for individuals who are eligible to vote. The 2000 election in Florida is a

conspicuous example of this. In that election, individuals who were eligible to

vote were incorrectly purged from voting rolls, simply because their names were

similar to those of disenfranchisees:

|0]ne need not indulge in counterfactual hypotheticals or 
mathematical modeling to see how felon disenfranchisement laws 
distorted the 2000 election. Florida’ s law not only excluded hundreds 
of thousands of ex-offenders from the polls; [they] disenfranchised 
significant numbers o f eligible voters as well due to a profoundly 
Hawed purge process. The process was plagued by false positives.
For example, individuals were removed because their names 
resembled those of convicted Felons, or despite the fact that their 
convictions did not trigger disenfranchisement under Florida law, or 
even though their voting rights had been restored.22 23

Not surprisingly, these impacts are felt disproportionately in minority

communities. In the case of Florida in 2000,

the purge removed 8,456 black voters from the rolls; after the 
election, of the 4,847 people who appealed, 2,430 were restored to the 
list as eligible voters. In one large county, the supervisor o f elections 
later estimated that fifteen percent o f the people purged were in fact 
eligible to vote and a majority o f those purged were African 
AmericanA3

Moreover, academic research shows that the racial disparity in initial 

disenfranchisement is further magnified by problems with restoring the right to 

vote. Even where statutes nominally allow ex-offenders to regain their voting

22 Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the 
Debate Over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1157-58 (2003) 
(emphasis added).
23 Id. at 1158.

17.



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rights, the lack of clear information actively discourages and prevents affected

individuals from doing so. Surveys of prisoners reflect widespread confusion on

when and how they can regain their voting rights, with many assuming (wrongly)

that they could never regain their voting rights even when the statute expressly

permits it. One academic survey reported that:

Florida is not alone in struggling with unclear and potentially 
discriminatory clemency processes. In Ohio, a recent study conducted 
by the Prison Reform Advocacy Center revealed that although 
convicted felons are eligible to vote upon release from confinement, 
many are unaware of their right to vote while under community 
supervision, or are given misleading information by state authorities.
. . . [T]he restoration processes for eligible voters in New York, 
Minnesota, and Idaho also were not implemented properly.24

Indeed, even government officials often do not understand who can and

cannot vote under disenfranchisement laws or how voting rights can be restored.

For example, in a spring 2005 phone survey conducted by the ACFU, over 50

percent of Northern California county probation offices provided incorrect

information when asked, “Can I vote if I am on probation?”25 Despite outreach

and dissemination of voting rights materials by local advocates, another survey in

2008 found that 13 percent of offices were still providing incorrect information.26

24 Daniel S. Goldman, The Modern-Day Literacy Test?: Felon Disenfranchisement 
and Race Discrimination, 57 Stanford L. Rev. 611, 639 (2004).
25 Harris, supra note 2, at 22.
26 Id.

18.



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It is not hard to imagine the praetical ramifications that stem from this sort 

of systemic confusion. For instance, in the 2004 elections in Washington, 

confusion about which individuals were eligible for re-enfranchisement, along with 

imprecise and inconsistently applied policies, led to many disenfranchised 

individuals being allowed to vote while other individuals who should have been 

permitted to vote were not. Indeed, these systemic problems in implementing 

Washington's disenfranchisement statute prompted Washington State’s Secretary 

of State, Sam Reed, to endorse the automatic restoration of voting rights when 

people are released from prison (directly contrary to the position now advocated by 

the State in this appeal).27 28

As with the initial disenfranchisement process, the problems associated with

re-enfranchisement are disproportionately felt in minority communities,

exacerbating the discriminatory impact on voting rights. According to one study,

even when ex-offenders do regain their voting rights, 
disproportionately few African Americans are permitted to vote again.
Of the approximately 8400 individuals whose voting rights were 
restored in Florida from 1997 through 2001, only 25% were black,

27 Scores o f Felons Voted Illegally, Seattle T imes, Jan. 23, 2005, available at 
http://seattletimes.nwsource.com/html/localnews/2002158407_felons23m.html.
28 ACLU, Legislature Reforms Voting Rights Restoration (Apr. 22, 2009), 
available at http://www.aclu.org/racial-justice-voting-rights/legislature-reforms- 
voting-rights-restoration: “In Washington, automatic restoration is supported by a 
wide range of organizations, including the League of Women Voters of 
Washington, the Washington Association of Churches, the Washington State Bar 
Association, and Washington State NOW, as well as Secretary of State Sam Reed.”

19.

http://seattletimes.nwsource.com/html/localnews/2002158407_felons23m.html
http://www.aclu.org/racial-justice-voting-rights/legislature-reforms-voting-rights-restoration
http://www.aclu.org/racial-justice-voting-rights/legislature-reforms-voting-rights-restoration


Case: 06-35669 06/11/2010 Page: 27 of 39 ID: 7370116 DktEntry: 125

whereas more than half the prison population is black and nearly half
29of all people convicted of felonies in Florida are black.- 

These collateral impacts are part of the “totality of circumstances” showing that the 

discriminatory impact of the Washington statute persists long after former 

prisoners become technically eligible to have their voting rights restored and 

extends well beyond those current and former prisoners directly affected.

Moreover, these collateral effects lend further support to the Panel's 

conclusion that the amendments to the Washington statute do not ameliorate its 

discriminatory effects or otherwise moot Plaintiffs’ claims. Even though 

Washington now allows formerly incarcerated persons to regain their voting rights 

in some circumstances, the literature and studies discussed above make abundantly 

clear that these superficial modifications to the system are unlikely to make a dent 

in the discriminatory impact of the statute because the effects of 

disenfranchisement are compounded even after re-enfranchisement. The recent 

amendments to the Washington statute thus cannot alleviate the disproportionate 

impact of disenfranchisement on minority populations.

B. Washington’s law disenfranchises a huge number of individuals.

As the Panel correctly noted, the cumulative impact of the

disenfranchisement laws on minority communities is dramatic, with “over 17% of 

the entire adult black population of Washington disenfranchised” as of the date of

29 Goldman, supra note 24, 638 (emphasis added).

20.



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the referenced study. Farrakhan, 590 F.3d at 1016. These findings are consistent 

with the general academic literature, which consistently shows stark disparities in 

the impact felt by minority communities. In one study of Atlanta neighborhoods, 

for instance, a predominantly African-American community had nearly 20 times as 

many disenfranchised voters as a similar nearby predominantly white 

neighborhood.

This discriminatory impact of disenfranchisement is not limited to the 

African-American population in Washington State; Hispanic and Native American 

communities are also affected disproportionately. According to the 2003 report of 

the Washington State Sentencing Guidelines Commission, 36 percent of

Washington prisoners are Hispanic, African-American, or Native American — a

• • • • "21 level grossly disproportionate to their overall populations in the state.' Even these

numbers, however, do not tell the full story of the discriminatory impact that

results from the disenfranchisement laws, for the reasons discussed below. 30 *

30 Ryan S. King & Marc Mauer, The Sentencing Project, The Vanishing Black 
Electorate: Felony Disenfranchisement in Atlanta, Georgia at 9-10 (Sept. 2004), 
available at
http://www.sentencingproject.org/doc/publieations/fd vanishingblackelectorate.pd 
f.
11 Washington State Sentencing Guidelines Commission, Disproportionality and 
Disparity in Adult Felony Sentencing (2003), available at
http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionalit Report2
003.pdf.

21.

http://www.sentencingproject.org/doc/publieations/fd
http://www.sgc.wa.gov/PUBS/Disproportionality/Adult_Disproportionalit


Case: 06-35669 06/11/2010 Page:29of39 ID: 7370116 DktEntry: 125

C. Washington’s disenfranchisement law undermines political 
participation across entire minority communities and not just 
among disenfranchised prisoners.

In considering the “totality of circumstances,” the Court should look not 

only to the impact on individuals directly subject to the disenfranchisement statute, 

but to the real-world effect that disenfranchisement has on the communities of 

which these individuals are a part. Numerous studies have found that the impact of 

disenfranchisement is not merely confined to the current and former prisoners 

directly affected. Rather, the laws create cascading effects that “cast a permanent 

shadow over the poor minority communities where disenfranchised people 

typically live” by decreasing voting turnout and overall civic participation.

This occurs because voting and political participation are largely social 

activities; community norms and standards typically dictate who turns out to vote. 

From a very young age, “[p]eople are attentive to the behavior modeled by others 

and internalize norms readily, especially when those around them provide clear 

signals about what types of conduct are considered appropriate.” ’'’ Because of 

disenfranchisement laws, however, younger residents in many minority * 33

’2 Brent Staples, How Denying the Vote to Ex-Offenders Undermines Democracy, 
N.Y. T imes, Sept. 17, 2004, at Al, available at
http ://www.ny times.com/2004/09/17/opinion/17 fri3 .htm l?_r= 1 &scp= 1 &sq=how% 
20denying%20the%20vote%20to%20ex&st=cse.
33 Alan S. Gerber et al., APSA, Social Pressure and Voter Turnout: Evidence from 
a Large-Scale Field Experiment, 102 Am. Political Sci. Rev. 33, 33-34 (2008).

2 2 .

http://www.ny


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communities “grow up with the unfortunate example of neighbors, parents and 

grandparents who never vote and never engage in the political process, even 

superficially.”34

Researchers have quantified the impact that this has on voting and found that 

each individual “decision to vote affects the turnout decision of at least four people 

on average in a "turnout cascade.’”35 Where members of a community know that a 

number of others in their social network cannot vote, overall turnout is likely to 

decline because voting is no longer something that is expected in the community.

In this way, even a small group of disenfranchisees can result in massive change in 

voting behavior at the community level, introducing a pervasive strain of voter 

malaise and depressing civic participation in communities that are already among 

the most “racially and economically segregated neighborhoods” in the country.’6 

The “turnout cascade” effect has been well-documented across many 

demographics and in many situations, both in controlled studies and in the field. ’7 

Most importantly, it has been clearly documented in the context of felon 

disenfranchisement laws. At least two studies have examined the link between 

felon disenfranchisement laws and voter turnout. Both studies have found a direct * 35 36 37

’4 Staples, supra note 32.
35 James I I. Fowler, Turnout in a Small World, in Social Logic of Politics at 19 
(2005), available at http://jhfowler.ucsd.edu/turnout in a small world.pdf.
36 Dorothy E. Roberts, The Social and Moral Cost o f Mass Incarceration in 
African American Communities, 56 Stan. L. R e v . 1271, 1275-76 (2004).
37 Gerber et ah, supra note 33, 40.

2 3 .

http://jhfowler.ucsd.edu/turnout


Case: 06-35669 06/11/2010 Page: 31 of 39 ID: 7370116 DktEntry: 125

and statistically significant relationship between the severity of voter 

disenfranchisement laws and turnout among African-American non-felons.

One study (the “McLeod Study”) examined Federal Election Commission

38statistics and compared them with Census records to determine voter turnout.

The study controlled for variables like socioeconomic status, state voting laws, and 

a variety of other factors termed “political oppression” factors. '9 States examined 

in the study were then grouped according to the severity of their 

disenfranchisement laws based on how extensive the laws were (i.e., whether they 

extended beyond incarceration, for example).90 Results showed that severe 

disenfranchisement laws had the effect of depressing voter turnout overall among 

all groups studied and disproportionately decreased turnout among African- 

Americans compared to Caucasian voters.41 The probability that a non- 

disenfranchised African-American would vote in a state with severe 

disenfranchisement laws was a full 10 percent lower than in a state with less severe

38

39
McLeod, et al. supra note 1, 74. 
Id. at 75-76.

40 Id.
41 Id. at 77. Note that this effect was not merely the result of “the inclusion of 
disenfranchised people” in the sample. To protect against this possibility, the 
authors ran the statistics by gender (since African-American males are significantly 
more likely to be convicted of a crime than females) and found that the same 
interaction existed. Id. at 79-80, fn 43.

24.



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laws.42 This result occurred despite the fact that the probability of similarly 

situated whites across states remained “relatively unchanged.”43

From this data, the McLeod Study concluded that disenfranchisement “laws 

disproportionately suppress turnout among non-disenfranchised African 

Americans.”44 Given the rising disparity in conviction rates for African- 

Americans, this “racial disparity in voting participation...will only grow larger 

with time.”45 The cascade effect, moreover, strongly suggests that even 

“individuals with no criminal record who might be very likely to vote...might be 

less likely to vote if those with whom they associate cannot participate in 

elections,” further compounding the harm.46

A second study (the “Ochs Study”) replicated these results. The Ochs Study 

examined the relationship between severity of disenfranchisement laws and 

African-American political participation. Like the McLeod study, the Ochs Study 

found a significant correlation between severe disenfranchisement laws and 

decreased African-American political participation. Notably, the laws did not have 

the same effect on Caucasian turnout.

42 Id. at 79.
43 Id.
44 Id. at 67.
45 Id. at 81.
46 Id. at 72.

2 5 .



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This study concluded that severe “[disenfranchisement policies have a 

significant independent effect on voting rights in the black community and do not 

have a similar effect on white voters...the ability of the black community to 

achieve adequate representation is substantially diminished as fewer and fewer 

blacks qualify for voter registration.”47 Significantly, the Ochs Study used voter 

registration records to determine “political participation,” unlike the McLeod 

Study, which used voter turnout records. Disenfranchisement laws do not, then, 

merely decrease the probability that an African-American will turn out to vote. 

Rather, they also decrease the probability that an African-American will even take 

the preliminary step of registering to vote.

D. These cascading effects of the disenfranchisement laws deprive 
minority communities of political power and undermine the 
political process as a whole.

The direct and inevitable result of the cycle of disengagement fostered by 

disenfranchisement laws is the erosion of political power among minority 

communities. Numerous researchers and academics studying this issue have found 

that disenfranchisement laws like the Washington statute have a real and direct 

impact that extends beyond the individuals directly affected by undermining the 

political power of the larger communities of which they are a part. At the broadest 

level, “felon disenfranchisement and other collateral consequences of criminal

47 Ochs, supra note 6, 88.

26.



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offenses have beeome instruments o f ‘social exclusion’ ... that create a 

‘permanent diminution in social status of convicted offenders, a distancing 

between ‘us’ and ‘them.” ” The following findings are representative of this 

extensive body of academic literature:

• Disenfranchisement laws “translate^ the denial of individuals felons’ voting 
rights into disenfranchisement of entire communities. Excluding such huge 
numbers of citizens from the electoral process substantially dilutes African 
American communities’ voting power.”48 49

• “Thus, not only are criminal justice policies contributing to the 
disproportionate incarceration of African Americans, but imprisonment itself 
then reduces the collective political ability to influence these policies.”50

• If “a significant segment of the community is denied the opportunity to 
participate in the political process, communities are subsequently denied the 
opportunity to vote individuals or parties into office that are favorably 
disposed to the needs and desires of the community.”51 52

The harm done to minority communities is not merely theoretical; recent

studies suggest that “there is a real possibility that minorities are losing out due to

low voter turnout.” Minority turnout in local elections is a statistically significant

48 Goldman, supra note 24, 643.
49 Roberts, supra note 36. 1292.
50 Marc Mauer, The Sentencing Project, The Crisis o f the Young African American 
Male and the Criminal Justice System at 13 (Apr. 1999). Mauer’s paper was 
prepared for the U.S. Commission on Civil Rights and is available at 
http://www.sentencingproject.org/doe/publications/rd erisisoftheyoung.pdf.
51 S. David Mitchell, Undermining Individual and Collective Citizenship: The 
Impact o f Exclusion Laws on the African-American Community, 34 FORDHAM Urb. 
L.J. 833, 857 (2007).
52 Zoltan Hajnal & Jessica Trounstine, Where Turnout Matters: The Consequences 
of Uneven Turnout in City Politics, 67 The J. of Pol. 515, 531 (2005). The Hajnal

2 7 .

http://www.sentencingproject.org/doe/publications/rd


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predictor of diversity in local government bodies; reduced turnout works directly 

against electing diverse officials who are representative of the surrounding
n

community. Disenfranchisement exacerbates these problems, driving voter 

turnout even lower and causing “severe imbalances in participation...leading] to 

even greater inequalities in political representation.”54 In this way, 

disenfranchisement acts as a punishment on not only the individuals directly 

affected, but the community they reside in as well. Without a political voice, 

communities are left powerless to effect change or to control their political futures.

Moreover, the loss of minority votes skews the overall political discourse, 

damaging society and threatening the legitimacy of democratic decision-making as 

a whole. A “liberal democratic political system functions best when the views and 

preferences of all its members can be expressed.”55 This is particularly true when 

members of the minority share particular views or experiences that diverge from 

the mainstream.56

study examined turnout among Latinos, African-Americans, and Asian-Americans 
in ten different urban municipalities across the country to gauge the effects of 
minority turnout in local and national elections. The authors controlled for 
variables like socioeconomic status and education as well as region.
53 Id.
5y .
55 Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal o f Prisoner 
Disenfranchisement Laws, 13 Temp. Pol. & Civ. Rts. L. Rev. 71, 95 (2003).
56 Id. at 95.

28.



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By effectively removing key constituencies from the electoral equation, 

disenfranchisement robs the political process of significant perspectives that are 

needed to ensure legitimate policy outcomes. Losses like this are particularly 

problematic with respect to issues involving the criminal justice system, where the 

“legitimacy of criminal punishment...depends on the legitimacy of the process that 

produces and enforces the criminal law.” Absent such legitimacy, democratic 

institutions face imminent threat of “the collapse of effective social order" as 

individuals begin to disregard the rules and norms established by governmental 

institutions.' In this way, disenfranchisement “touches all of us by altering the 

composition of the electorate in ways that may have an effect on the formation of 

public policy, and by perpetuating the symbolic and instrumental exclusion of 

millions of already marginalized members of society.”5

CONCLUSION

As the State acknowledges, the relevant question in this case ”is whether as 

a result of the challenged practice or structure plaintiffs do not have an equal 

opportunity to participate in the political processes and to elect candidates of their * 58 59

37 Karlan, supra note 22, 1169.
58 .Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 
Ann. Rev. Psychol. 375, 377 (2006).
59 Parkes, supra note 55, 110.

29.



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choice.”60 Amici submit that the circumstances here overwhelmingly establish a 

violation of the Voting Rights Act under this standard. As discussed above, the 

Washington statute’s discriminatory impact is measured not just by the loss of 

voting rights among those prisoners and former prisoners directly affected (as 

dramatic as those impacts are). Rather, the “totality of circumstances” shows that 

the discriminatory impact on current and former prisoners is directly transferred to 

the minority communities of which they are a part, ultimately depriving these 

communities of an equal opportunity “to participate in the political process.” For 

these reasons, amici respectfully request that this Court reverse the District Court’s 

judgment and affirm the Circuit Panel’s decision.

Dated: June 11, 2010 COOLEY LLP

BYL_ /s/ Whitty Somvichian_____________
Whitty Somvichian 
wsomvichian@cooley.com 
101 California Street, 5lh Floor 
San Francisco, CA 94111-5800 
Phone (415) 693-2000 
Fax: (415) 693-2222

Attorneys for Lawyers' Committee For Civil 
Rights, Equal Justice Society, Legal Services 
For Prisoners With Children, And American 
Parole And Probation Association

60 Defs.-Apps’ Br. in Support of Rehearing En Banc, Farrakhan v. Gregoire, No. 
06-35669, Docket 75-1, at 13 (Mar. 5, 2010), citing Thornburg, 478 U.S. at 44.

30 .

mailto:wsomvichian@cooley.com


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CERTIFICATE OF COMPLIANCE

Counsel of Record hereby certifies that pursuant to Federal Rule of 

Appellate Procedure 32(a)(7) and Ninth Circuit Rule 29-2(b), the Brief of 

Amicus Curiae is produced using at least 14-point Times New Roman type 

including footnotes and contains approximately 6,983words, which is less 

than the total words permitted by the Rules of Court. Counsel relies on the 

word count of the computer program used to prepare this brief.

Dated: June 11,2010 COOLEY LLP

B y;_ /s/ Whitty Somviehian___________
Whitty Somviehian 
wsomvichian@cooley.com 
Kyle Wong 
kwong@cooley.com 
101 California Street, 5th Floor 
San Francisco, CA 94111-5800 
Phone (415)693-2000 
Fax: (415) 693-2222

Attorneys for Lawyers ’ Committee For 
Civil Rights, Equal Justice Society, Legal 
Se/~vices For Prisoners With Children, And 
American Parole And Probation 
Association

31.

mailto:wsomvichian@cooley.com
mailto:kwong@cooley.com


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing BRIEF OF 

THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS, EQUAL JUSTICE 

SOCIETY, LEGAL SERVICES FOR PRISONERS WITH CHILDREN, 

AND AMERICAN PAROLE AND PROBATION ASSOCIATION AS 

AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS ON 

REHEARING EN BANC with the Clerk of the Court for the United States 

Court of Appeals for the Ninth Circuit by using the appellate CM/ECF 

system on June 11,2010.

Participants in the case who are registered CM/ECF users will be 

serviced by the appellate CM/ECF system.

I further certify that some of the participants in the case are not 

registered CM/ECF users. I have mailed the foregoing documents by first- 

class mail, postage prepaid on June 11,2010, to the following non-CM/ECF 

participants:

Case: 06-35669 06/11/2010 Page: 39 of 39 ID: 7370116 DktEntry: 125

Thomas C. Goldstein Daniel F. Kolb
AKIN GUMP STRAUSS HAUER & Davis Polk & Wardwell LLP
FELD, LLP 450 Lexington Avenue
Robert S. Strauss Bldg. New York, NY 10017
1333 New Hampshire Ave., NW
Washington, DC 20036-1564

By: /s/ Whittv Somviehian
1181023 vlO/SF

32 .



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No. 06-35669

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MUHAMMED S. FARRAKHAN
(A/K/A ERNEST S. WALKER-BEY); AL-KAREEM SHADEED, MARCUS 

PRICE; RAMON BARRIENTES; TIMOTHY SCHAAF; AND 
CLIFTON BRICENO,

v.
Plaintiffs-Appellants,

CHRISTINE O. GREGOIRE, GOVERNOR OF THE STATE OF 
WASHINGTON; SAM REED, SECRETARY OF STATE FOR THE STATE OF 

WASHINGTON; HAROLD W. CLARKE, DIRECTOR OF THE WASHINGTON 
DEPARTMENT OF CORRECTIONS; AND THE STATE OF WASHINGTON,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF WASHINGTON 

No. CV-96-076-RHW

BRIEF OF AMICI CURIAE NATIONAL BLACK POLICE ASSOCIATION, 
NATIONAL LATINO OFFICERS ASSOCIATION, AMERICAN 
PROBATION AND PAROLE ASSOCIATION, AND FORMER LAW- 
ENFORCEMENT OFFICIALS IN SUPPORT OF APPELLANTS AND 
AFFIRMANCE OF THE PANEL DECISION.

Lawrence S. Lustberg 
Jennifer B. Condon 
GIBBONS P.C.
One Gateway Center 
Newark, NJ 07102 
(973) 596-4489



Case: 06-35669 06/11/2010 Page: 2 of 33 ID: 7370117 DktEntry: 126

STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Fed. R. App. P. 26.1, amici curiae the National Black Police

Association, National Latino Officers Association, and American Probation and 

Parole Association, by and through their undersigned counsel, state that they are 

non-profit 501(c)(3) organizations and therefore not public ly held corporations that 

issue stock.

June 11, 2010 /s Lawrence S. Lustberg

Lawrence S. Lustberg 
GIBBONS P.C.



Case: 06-35669 06/11/2010 Page: 3 of 33 ID: 7370117 DktEntry: 126

TABLE OF CONTENTS

Page

STATEMENT OF CORPORATE DISCLOSURE................................................... i
TABLE OF AUTHORITIES.....................................................................................ii
INTEREST OF AMICI CURIAE...............................................................................1
INTRODUCTION AND SUMMARY OF ARGUMENT.......................................3
ARGUMENT.............................................................................................................7
I. ENFORCING SECTION 2 OF THE VRA TO REMEDY

WASHINGTON’S DISCRIMINATORY DENIAL OF VOTING 
RIGHTS IS CONSISTENT WITH STRONG AND EFFECTIVE 
STATE LAW ENFORCEMENT............................................................7

A. Enforcing the VRA is Consistent with Law 
Enforcement’s Overarching Goals of Crime Reduction
and Public Safety........................................................................7

B. Remedying Washington’s Discriminatory Denial of
Voting Rights Would in No Way Impede State Law 
Enforcement Practices and Strategies.......................................13

II. BECAUSE ENFORCING SECTION 2 OF THE VRA DOES NOT
INTERFERE WITH TRADITIONAL STATE LAW 
ENFORCEMENT PREROGATIVES, FEDERALISM CONCERNS 
ARE NOT IMPLICATED...................................................................  18

CONCLUSION....................................................................................................... 22
CERTIFICATE OF COMPLIANCE......................................................................24
CERTIFICATE OF SERVICE............................................................................... 25
Appendix .............................................................................................................A-l

- i -



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TABLE OF AUTHORITIES

Page(s)

Cases

Coleman v. Thompson,
501 U.S. 722 (1991)............................................................................................ 20

Cotton v. Fordice,
157 F.3d 388 (5th Cir. 1998) .............................................................................  12

Farrakhan v. Gregoire,
2006 WL 1889273 (E.D. Wash. Jul. 7, 2006)..............................................4, 5, 6

Farrakhan v. Gregoire,
590 F.3d 989 (9th Cir. 2010)............................................................................ 3, 5

Fernandez v. Kiner,
673 P.2d 191 (Wash. App. 1983)........................................................................19

Hayden v. Pataki,
449 F.3d 305(1985)..............................................................................................21

Hunter v. Underwood,
471 U.S. 222 (1985).............................................................................................. 12

Johnson v. De Grandy,
512 U.S. 997 (1994)................................................................................................4

Johnson v. Florida,
405 F.3d 1214 (11th Cir. 2005).......................................................................... 21

McClesky v. Zant,
499 U.S. 467 (1991)............................................................................................  20

Ratliff v. Beale,
20 So. 865 (Miss. 1896)........................................................................................12

State v. Schmidt,
23 P.3d 462 (Wash. 1896)...................................................................................  19

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Thornburgh v. Gingles,
478 U.S. 30 (1986)................................................................................................ 4

United States v. Bass,
404 U.S. 336 (1971)............................................................................................. 20

United States v. Emmons,
410 U.S. 396(1973)....................................................................................... 19, 20

United States v. Lopez,
514 U.S. 549 (1995).......................................................................................18, 20

Younger v. Harris,
401 U.S. 37(1971)............................................................................................  20

Constitutional Provisions

Washington Constitution Article VI, § 3 ................................................................. 3

Statutes and Regulations

42 U.S.C. § 1971, et seq............................................................................................. 2

RCW § 29A.08.520 .......................................................................................... 3, 19

Pub. L. No. 89-110, 79 Stat. 437 .............................................................................. 3

Pub. L. No. 97-205, 96 Stat. 134 (1982)
(codified as amended 42 U.S.C. § 1973)................................................................. 3

Other Authorities

ABA, Criminal Justice Standards on Collateral Sanctions and Discretionary
Disqualification of Convicted Persons (2003) ..................................................  10

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ABA Standards for Criminal Justice 23-8.4: Voting Rights (2d ed. 1983)...........10

Alpert, Geoffrey P. & Piquero, Alex R.,
Community Policing: Contemporary Readings (2000)...................................... 16

Am. Corr. Ass’n,
Resolution on the Restoration of Voting Rights (Jan. 14, 2004) ...................... 11

Braga, Anthony A., et al,
Controlling Violent Offenders Released to the Community: An Evaluation o f the 

Boston Reentry Initiative (2008)..........................................................................9

Foner, Eric,
Reconstruction: America’s Unfinished Revolution 1863-1877 593 (1988).....  12

Ewald, Alec C. “Civil Death: ” The Ideological Paradox o f Criminal
Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1089-90
(2002) ............................................................................................  12

Johnson, Robert M. A.,
Message from the President — Collateral Consequences, National District 
Attorneys Association (May/June 2001) ...........................................................11

Karlan, Pamela S.,
Convictions and Doubts: Retribution, Representation, and the Debate Over 
Felon Disenfranchisement, 56 Stan. L. Rev. 1147 (2004) ..................................8

King, Ryan S.,
The Sentencing Project, Expanding the Vote: State Felony Disenfranchisement 
Reform, 1997-2008 (Sept. 2008)...........................................................................14

Manza, Jeff & Uggen, Christopher,
Locked out: Felon Disenfranchisement and American Democracy (Oxford 
University Press 2006) .....................................................................................8, 9

Mauer, Marc,
Felon Disenfranchisement: A Policy Whose Time Has Passed? 31 Human 
Rights (2004 A.B.A. Sec. Ind. Rts. & Resp.)..................................................... 15

Model Penal Code § 306.3 (2001) .........................................................................  11

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Nat’l Conf. of Comm’rs on Uniform State Laws,
Uniform Collateral Sanctions and Disqualifications Act § 3 (2006 draft).........11

Nat’l Research Council,
Fairness and Effectiveness in Policing: The Evidence, 85 (Wesley Skogan & 
Kathleen Frydl, eds., 2004)................................................................ 7, 12, 16, 17

Petersilia, Joan,
When Prisoners Return to the Community: Political, Economic, and Social 
Consequences, in Nat’l Inst, of Justice’s Sentencing & Corr. Issues for the 21st 
Century 5 (2000).............................................................................................9, 10

President’s Comm'n on Law Enforcement & Admin, of Justice,
The Challenge o f Crime in a Free Society (1967)................................................7

Arlen M. Rosenthal, et al., Community Policing: 1997 National Survey Update o f 
Police and Sheriffs’ Departments (April 2001)................................................. 16

Sarat, Austin,
Studying American Legal Culture, 11 Law & Soc. Rev. 427 (1997)................ 17

Tyler, Tom R., et al.,
Social Justice in a Diverse World (1997)...........................................................17

Sentencing Project. Felony Disenfranchisement Laws in the United States
(March 2010)..................................................................................................14, 15

Scott, Michael S.,
Progress in American Policing? Reviewing the National Reviews, 34 Law & 
Social Inquiry 171 (2008)..............................................................................  7, 14

Shapiro, Andrew L.,
The Disenfranchised, The American Prospect at Nov. 1, 1997......................... 10

Uggen, Christopher & Manza, Jeff,
Voting and Subsequent Crime & Arrest: Evidence from a Community Sample,
36 Colum. Hum. Rts. L. Rev. 193 (2004).....................................................  9, 10

Washington State Office of the Attorney General, 
http://www.atg.wa.gov/AlliedAgainstMeth/default.aspx
(last visited June 10, 2010).....................................................................................  16

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http://www.atg.wa.gov/AlliedAgainstMeth/default.aspx


INTEREST OF AMICI CURIAE

Amici curiae are professional law-enforcement associations and former law- 

enforcement officials who are united in their belief that disenfranchising otherwise 

qualified citizens who have been convicted of a felony—including tens of 

thousands of African-American, Latino, and Native American citizens—is 

inconsistent with strong state law enforcement. Amici National Black Police 

Association (NBPA) and National Latino Officers Association of America 

(NLOA), which together represent more than 45,000 local, state and federal law- 

enforcement officers and employees, work to promote effective law enforcement 

practices and to build stronger bonds between minority law-enforcement officers 

and the communities which they serve. The American Probation and Parole 

Association is an association actively involved with probation, parole and 

community-based corrections. Individual amici—Zachary W. Carter, Veronica 

Coleman-Davis, Scott Lassar, Kate Pflaumer, Chase Riveland, and Norm 

Stamper—are prominent former state and federal law-enforcement officials, 

including four former United States Attorneys, a former Secretary of Washington's 

Department of Corrections, and a former Seattle Police Chief.*

Throughout their careers, amici have sought to employ the most effective 

law enforcement strategies to reduce crime and keep their communities safer. At

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* A more complete description of each amicus can be found at Appendix A.



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the same time, as officers of the law, amici have remained committed to vigorous 

enforcement of federal civil rights protections, including the Voting Rights Act of 

1965, 42 U.S.C. § 1971, et seq. (“VRA”). Through years of experience, amici 

know well that both can be accomplished simultaneously. Amici thus write to 

explain why remedying the discriminatory denial of voting rights resulting from 

Washington’s felon disenfranchisement law would in no way undermine the 

State’s law enforcement interest in reducing crime and promoting public safety. 

Nor would application of the VRA to Washington’s disenfranchisement law 

impede traditional law enforcement practices and innovative strategies utilized by 

police officers, prosecutors and correctional officers to achieve those goals. Thus, 

enforcing the VRA would not disturb the delicate balance of state and federal 

power.

Amici agree with Appellants and the decision of a panel of this Court that the 

“compelling” showing of racial bias in Washington’s criminal justice system and 

the automatic disenfranchisement of persons convicted of felonies pursuant to that 

system warrant a remedy under the VRA. Because remedying the discriminatory 

denial of voting rights pursuant to Washington’s felon disenfranchisement law

2



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would in no way interfere with state law enforcement interests, amici respectfully 

urge the Court to affirm the panel decision.'

INTRODUCTION AND SUMMARY OF ARGUMENT

This matter is before the Court for rehearing en banc, after a panel of this

Court held, on January 5, 2010, that Washington’s denial of the right to vote to 

convicted felons under Article VI, § 3, of the Washington State Constitution and its 

implementing statute, RCW § 29A.08.520, was “on account of race or color” and 

thus violated Section 2 of the Voting Rights Act of 1965 (“VRA”).1 2 * Farrakhan v. 

Gregoire, 590 F.3d 989, 1009-11 (9th Cir. 2010). The panel concluded that 

because automatic disenfranchisement results when individuals are convicted of 

felonies through Washington’s criminal justice system, unrebutted evidence that 

the state's criminal justice system was infected with racial bias established a 

discriminatory denial of voting rights in violation of Section 2 of the VRA. Id. at 

1010-11. The panel therefore reversed the district court's grant of summary 

judgment to Defendants, concluding that in light of that unrebutted evidence, “the 

district court should not have required Plaintiffs to produce additional 

circumstantial evidence” of discriminatory vote denial to establish a Section 2 

violation. M a t 1011.

1 Pursuant to Federal Rule of Appellate Procedure 29(a), counsel for the parties 
have consented to amici appearing in this matter and to the filing of this brief.
2 Pub. L. No. 89-110, 79 Stat. 437, as amended, Pub. L. No. 97-205, 96 Stat. 134
(1982) (codified as amended at 42 U.S.C. § 1973).

3



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In requiring additional circumstantial evidence of discriminatory vote denial, 

the district court had focused on several factors set forth in the Senate Report 

accompanying the 1982 amendments to Section 2, which factors, the Supreme 

Court has recognized, may, under Section 2’s “totality of circumstances” test, 

support a finding of discriminatory vote denial in violation of the VRA. See, e.g., 

Johnson v. De Grandy, 512 U.S. 997, 1010-11 & n.9 (1994) (citing S. Rep. No. 97- 

417, pp. 28-29 (1982)); Thornburg v. Gingles, 478 U.S. 30, 44-45 (1986) (same).3 

Although recognizing that “evidence of racial bias in Washington’s criminal 

justice system is compelling,” the district court concluded that it was “simply one 

factor in the totality of the circumstances that the Court must consider when 

evaluating Plaintiffs’ [Section] 2 claim.” Farrakhan v. Gregoire, No. CV-96-076, 

2006 WL 1889273, at *9 (E.D. Wash. Jul. 7, 2006). The district court reasoned 

that several of the Senate Factors, including Senate Factor 9—whether “the policy 

underlying the State’s . , . use of the contested practice or structure is tenuous”— 

favored the Defendants’ position. Id. at *8. The district court reached that result * 8

' Those “Senate Factors” include: “(1) a history of official discrimination touching 
on the right to vote, (2) racially polarized voting, (3) practices that may enhance 
the opportunity for discrimination, (4) whether minorities have been denied access 
to a candidate slating process, if one exists, (5) whether members of minority 
groups bear the effects of past discrimination, (6) racial appeals in campaigns, (7) 
the extent to which members of minority groups have been elected to public office,
(8) lack of responsiveness by elected officials to minority interests,” and most 
significantly here — (9) whether “the policy underlying the State’s . . . use of the 
contested practice or structure is tenuous.” Gingles, 478 U.S. at 45.

4



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even though it acknowledged that the State did “not explain why 

disenfranchisement of felons is ‘necessary’ to vindicate any identified state 

interest.” See id. at *8.

On appeal, a panel of this Court reversed, concluding that the lack of 

evidence supporting the Senate Factors to which the district court pointed was 

“without legal significance because proof relating to th[ose] factors is not 

necessary to establish a vote denial claim.” Farrakhan, 590 F.3d at 1007. While 

the court noted that the tenuousness of the state’s policy justification “could 

support Plaintiffs’ vote denial claim circumstantially,” it was not a prerequisite for 

finding a Section 2 violation. Id. at 1009. The panel concluded that the district 

court had erred in finding that Factor 9 “favors the defendants' position;” according 

to the panel, where Plaintiffs had proven that “the denial of their right to vote was 

‘on account o f race, it did not matter whether the state's policy reasons were 

tenuous—a [Section] 2 violation had been established.” Id.

On April 28, 2010, a majority of this Court ordered that this case be reheard 

en banc pursuant to Circuit Rule 35-3. On May 28, 2010, this Court extended the 

deadline for filing of amicus briefs supporting the position of Plaintiffs-Appellants 

until June 11,2010.4 Amici now file this instant brief to respectfully urge the Court 

to affirm the panel’s decision.

5



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Amici agree with the conclusion of the panel that Plaintiffs have established 

a Section 2 violation based upon the evidence of discrimination in Washington’s 

criminal justice system and the automatic impact of that discrimination in terms of 

the disenfranchisement of minority voters with felony convictions. They write to 

explain, however, that even if the en banc Court of Appeals concludes that more 

was required to establish a Section 2 violation, specifically that the state’s policy 

justification for felon disenfranchisement “is tenuous,” the Court should in no way 

presume that felon disenfranchisement serves the State’s interest in strong and 

effective law enforcement. The State has never attempted to offer an explanation 

for its felony disenfranchisement law5—a fact that should, in itself, render any 

belated justification for Washington’s felony disenfranchisement scheme 

“tenuous.” But, even more importantly, because, as demonstrated below, 

remedying the denial of voting rights based upon racial discrimination is consistent 

with ensuring strong and effective state law enforcement practices, this Court 

should reject any claim that law enforcement interests justify Washington’s felony 

disenfranchisement scheme, affirm the panel’s conclusion, and provide a remedy 

under Section 2 of the VRA.

To date, Appellees have not asserted any justification, penal or otherwise, for 
Washington’s felon disenfranchisement scheme. Joint Appendix (“J.A.”) at 649. 
Indeed, the district court found that “the State here does not explain why 
disenfranchisement of felons is ‘necessary’ to vindicate any identified State 
interest.” Farrakan, 2006 WL 1889273, at *8.

6



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ARGUMENT

I. ENFORCING SECTION 2 OF THE VRA TO REMEDY 
WASHINGTONS DISCRIMINATORY DENIAL OF VOTING 
RIGHTS IS CONSISTENT WITH STRONG AND EFFECTIVE 
STATE LAW ENFORCEMENT.

A. Enforcing the VRA is Consistent with Law Enforcement’s 
Overarching Goals of Crime Reduction and Public Safety.

Controlling serious crime, maintaining order and public safety, and 

safeguarding civil liberties have long been recognized as the fundamental goals of 

law enforcement. See Michael S. Scott, Progress in American Policing? 

Reviewing the National Reviews, 34 Law & Social Inquiry 171, 174 (2008) 

[hereinafter Progress in American Policing] (citing President's Comm’n on Law 

Enforcement & Admin, of Justice, The Challenge o f Crime in a Free Society 

(1967)).6 Even as the focus and tasks of law enforcement have evolved over time, 

“controlling serious crime [has] remained] the first priority of policing." See Nat'l 

Research Council, Fairness and Effectiveness in Policing: The Evidence, 85 

(Wesley Skogan & Kathleen Frydl, eds., 2004) [hereinafter Fairness and 

Effectiveness in Policing}. Because restoration of voting rights would not 

undermine these overarching law enforcement goals, enforcing the VRA to remedy 

discriminatory vote denial in Washington is fully consistent with strong and 

effective state law enforcement.

6 available at www.ncjrs.gov/pdffilesl/nij/42.pdf.

7

http://www.ncjrs.gov/pdffilesl/nij/42.pdf


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Specifically, evidence and experience show that felon disenfranchisement 

neither helps to control crime, nor promotes public safety. While amici recognize 

that criminal punishment can deter future criminal conduct, whether by the 

particular offender (specific deterrence) or by others (general deterrence), there is 

no evidence that disenfranchising persons who have been convicted of felonies 

serves to further deter them from reoffending, or to deter others from committing 

felonies. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, 

and the Debate Over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1166 

(2004) (arguing “that an individual who is not deterred by the prospect of 

imprisonment or fines or other restrictions on his liberty” is unlikely to “be 

dissuaded by the threat of losing his right to vote, even if he were aware that 

permanent disenfranchisement is a collateral consequence of a criminal 

conviction”). To the extent criminal activity can be deterred, it is through the 

threat of incarceration and significant fines, and not exclusion from political 

participation. See Jeff Manza & Christopher Uggen, Locked out: Felon 

Disenfranchisement and American Democracy 36, 133 (Oxford University Press 

2006) [hereinafter Locked Out].

Additionally, unlike incarceration, felon disenfranchisement is not justified 

by law enforcement’s interest in incapacitating offenders as a means of protecting 

the community, since disenfranchisement “only affects a narrow range of

8



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activities” and therefore logically, cannot “prevent people from committing crimes 

unrelated to voting.” Manza & Uggen, Locked Out, supra, at 36. In fact, research 

suggests that offenders who retain the right to vote may be less likely to re-offend. 

Id. at 133 (discussing research indicating lower recidivism rates among voters); see 

also Christopher Uggen & Jeff Manza, Voting and Subsequent Crime & Arrest: 

Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193, 214 

(2004) (“Voting appears to be part of a package of pro-social behavior that is 

linked to desistance from crime.”) [hereinafter Voting and Subsequent Crime].

In addition to deterrence and incapacitation, a related component of effective 

law enforcement and crime reduction is the rehabilitation of incarcerated and 

paroled individuals so that they may become law-abiding, productive citizens 

likely to refrain from further criminal activity. Research suggests that for persons 

released from prison, reintegration into the community is a critical factor in 

avoiding recidivism. See Anthony A. Braga, ei al. , Controlling Violent Offenders 

Released to the Community: An Evaluation o f the Boston Reentiy Initiative (2008). 

And evidence and experience have shown that, far from encouraging rehabilitation 

as a means of crime reduction, felon disenfranchisement only adds an additional 

barrier to successful reintegration into society. Joan Petersilia, When Prisoners 

Return to the Community: Political, Economic, and Social Consequences, in Nat’l 

Inst, of Justice’s Sentencing & Corr. Issues for the 21st Century 5 (2000).

9



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Moreover, where, as in Washington, denial of the right to vote 

disproportionately affects members of racial minority groups, persons affected by 

felon disenfranchisement are susceptible to even further “alienation” and 

“disillusionment with the political process” and thus further obstacles to 

community reintegration and rehabilitation. Id. at 5. This consequence of felon 

disenfranchisement is particularly counterproductive from a law enforcement 

perspective, given the evidence that political education and electoral participation 

can play an important role in integrating ex-offenders into the community, thereby 

reducing the risk of recidivism. Uggen & Manza, Voting and Subsequent Crime, 

supra, at 215 (analyzing empirical evidence and concluding that when “felons 

begin to vote and participate as citizens in their communities, it seems likely that 

many will bring their behavior into line with the expectations of the citizen role, 

avoiding further contact with the criminal justice system”).

For all of these reasons, the American Bar Association and the American 

Law Institute have long opposed felon disenfranchisement, recognizing that the 

“stigma of exclusion . . . deter[s] rehabilitation and increase[s] the likelihood of 

recidivism." Andrew L. Shapiro, The Disenfranchised, The American Prospect at 

Nov. 1, 1997, at 60 (stating that these “mainstream groups . . . came out against 

disenfranchisement decades ago”); see also ABA, Standards for Criminal Justice 

23-8.4: Voting Rights (2d ed. 1983); ABA Criminal Justice Standards on Collateral

10



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Sanctions and Discretionary Disqualification of Convicted Persons (2003); Model 

Penal Code § 306.3 (2001) (prohibiting disenfranchisement that continues after “a 

sentence of imprisonment” has ended). Many law enforcement experts likewise 

agree that the goal of rehabilitation is not served by felon disenfranchisement. See 

Am. Corr. Ass’n, Resolution on the Restoration of Voting Rights (Jan. 14, 2004) 

(opposing disenfranchisement after “completion of the offender’s sentence

including community supervision” because it “work[s] against the successful
f # o

reentry [into the community] of offenders as responsible, productive citizens”); 

Nat’l Conf. of Comm’rs on Uniform State Laws, Uniform Collateral Sanctions and 

Disqualifications Act § 3 (2006 draft) (recommending that upon “release from any 

term of imprisonment, a person convicted of an offense shall not be denied the 

right to vote based on that conviction”).7 8 9 Thus, the President of the National

District Attorneys Association has voiced a specific concern about creating a

“subclass of citizens . . . disenfranchised from the vote and continually labeled as 

criminals . . . .  [who] may believe they have no recourse but to continue to live 

outside the law.” Robert M. A. Johnson, Message from the President — Collateral 

Consequences, National District Attorneys Association (May/June 2001).10

7 available at http://www.abanet.org/leadership/2003/journal/101a.pdf.
8 available at http://www.aca.org/government/ policyresolution/view.aspID=62.
9 available at http://www.law.upenn.edu/bll/ulc/ucsada/ 2006octdraft.pdf.
10 available at http://www.ndaa.org/ndaa/about/president_message may June 
2001 .html.

11

http://www.abanet.org/leadership/2003/journal/101a.pdf
http://www.aca.org/government/
http://www.law.upenn.edu/bll/ulc/ucsada/
http://www.ndaa.org/ndaa/about/president_message


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In light of the evidence that felon disenfranchisement does little to achieve 

the primary goals of law enforcement by reducing crime or protecting the 

community, it is not surprising that historic justifications for felony 

disenfranchisement have never rested on a law enforcement rationale. Indeed, as 

numerous courts have recognized, the practice of felon disenfranchisement in the 

United States, both during and after Reconstruction, was actually motivated not by 

law enforcement concerns but by a desire to diminish the electoral strength of 

newly freed slaves. See Hunter v. Underwood, 471 U.S. 222, 229 (1985) (noting 

“movement that swept the post-Reconstruction South to disenfranchise blacks”); 

Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (“[Felon disenfranchisement 

statutes were] enacted in an era when southern states discriminated against blacks 

by disenfranchising convicts for crimes that, it was thought, were committed 

primarily by blacks.”); Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896) (describing 

how disenfranchisement was added to the 1890 Mississippi Constitution in order to 

“obstruct the exercise of the franchise by the negro race”); see also Manza & 

Uggen, Locked Out, supra, at 41-69. These laws often singled out crimes for 

which blacks were more likely to be convicted than whites, with little regard to the 

severity of the crime or its possible relation to the franchise. See Eric Foner, 

Reconstruction: America’s Unfinished Revolution 1863-1877 593 (1988); Alec C. 

Ewald, “Civil Death:” The Ideological Paradox o f Criminal Disenfranchisement

12



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Law in the United States, 2002 Wis. L. Rev. 1045, 1089-90 (2002). Law 

enforcement was never the rationale for these laws.

In sum, disenfranchisement does not serve the fundamental goals of law 

enforcement—controlling crime and maintaining order and public safety—and 

may even undermine important law enforcement interests such as offender 

rehabilitation. Thus, this Court should not presume what even the State has not 

contended: that Washington’s interest in strong state law enforcement provides a

non-tenuous justification for its “use of the contested practice’’ under Senate Factor 

9. Accordingly, enforcing the VRA to remedy the discriminatory denial of voting 

rights caused by Washington’s felony disenfranchisement scheme is fully 

consistent with strong and effective state law enforcement.

B. Remedying Washington’s Discriminatory Denial of Voting Rights 
Would in No Way Impede State Law Enforcement Practices and 
Strategies.

Applying the VRA to Washington’s disenfranchisement law is not only 

consistent with the overarching goals of law enforcement; it would also in no way 

interfere with the actual strategies and methods utilized by police officers and 

prosecutors in furtherance of those goals. Even as demands upon law enforcement 

officers have changed and innovative strategies for combating crime have 

developed, enforcing the law remains the “primary and distinctive method of the 

police” in reducing crime and protecting the public. Fairness and Effectiveness in

13



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Policing, supra, at 85. Indeed, conventional law enforcement strategies, such as 

patrols, traffic stops, field interrogations, arrests, the collection and cataloging of 

criminal evidence, still “predominate” in the work of police officers. Scott, 

Progress in American Policing, supra, at 177-78. None of these traditional 

methods utilized by law enforcement officers to enforce the criminal law and 

promote public safety would be impeded whatsoever by enforcing Section 2 of the 

VRA and restoring voting rights to persons convicted of felonies.

Significantly, the experience of dozens of states, which have in recent years 

expanded access to voting rights for persons with felony convictions is instructive. 

Having reconsidered the “wisdom” of felon disenfranchisement laws ‘In meeting 

legitimate correctional objectives,” these states represent a “momentum toward 

reform.” See The Sentencing Project, Felony Disenfranchisement Laws in the 

United States, at 1 (March 2010)" ([hereinafter Felony Disenfranchisement Laws]. 

Specifically, “since 1997, 19 states have amended felon disenfranchisement 

policies in an effort to reduce their restrictiveness and expand voter eligibility.” 

Ryan S. King, The Sentencing Project, Expanding the Vote: State Felony 

Disenfranchisement Reform, 1997-2008 (Sept. 2008). But there is no evidence to 

suggest that reforms in those states have in any way frustrated the efforts of law 11 12

11 available at http://www.sentencingproject.org/pdfs/1046.pdf.
12 available at
http://www.sentencingproject.org/doc/publications/fd_statedisenfranchisement.pdf.

14

http://www.sentencingproject.org/pdfs/1046.pdf
http://www.sentencingproject.org/doc/publications/fd_statedisenfranchisement.pdf


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enforcement officials to enforce the criminal law through traditional methods or to 

carry out public safety functions. Indeed, if they had, there would likely not be any 

“momentum toward reform.” Felony Disenfranchisement Laws, supra, at 1.

Moreover, in Maine and Vermont, for example, where individuals retain the 

right to vote in both prison and on parole, law enforcement officials continue to 

effectively investigate and prosecute criminal activity. See Marc Mauer, Felon 

Disenfranchisement: A Policy Whose Time Has Passed? 31 Human Rights (2004 

A.B.A. Sec. Ind. Rts. & Resp.) This experience suggests that applying the VRA 

to Washington’s disenfranchisement law and restoring the right to vote for 

individuals in prison and parole, would not in any way hinder the efforts of 

Washington's law enforcement officials to vigorously investigate and prosecute 

crimes and to perform all of the traditional functions of policing.

Nor would enforcing the VRA with respect to Washington’s discriminatory 

denial of voting rights undermine innovative law enforcement techniques that have 

emerged over the last several decades. Indeed, disenfranchisement may actually 

interfere with such innovation. Many states have adopted new strategies to prevent 

crime and promote safer communities, adopting community policing and 

rehabilitative prison programs, as well as creating specialized crime prevention 

units, designed to “focus their efforts on problems important to their organization

1' available at http://www.abanet.org/irr/hr/winter04/felon.html.

15

http://www.abanet.org/irr/hr/winter04/felon.html


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and to gain special knowledge and expertise.” See Fairness and Effectiveness in 

Policing, supra, at 77, 82. State attorneys general and district attorneys’ offices 

have developed similar specialized prosecution teams. For example, in 

Washington, the State Attorney General has adopted a statewide plan called 

Operation Allied Against Meth, that aims to investigate and prosecute 

Methamphetamine-related crimes through specialized prosecution, use of SWAT 

Teams, and education and community outreach. See Washington State Office of 

the Attorney General, http://www.atg.wa.gov/AlliedAgainstMeth/default.aspx (last 

visited June 10, 2010). Restoration of the right to vote for persons with felony 

convictions would have no effect on the ability of law enforcement to continue this 

and other similarly vital and innovative law enforcement efforts.

Moreover, felon disenfranchisement may actually impede innovation in law 

enforcement strategies that are designed to combat offenses that have been difficult 

to prevent using traditional police tactics. Community policing programs, for 

example, have emerged as an effective means of addressing gang-related and gun- 

related violence. See Geoffrey P. Alpert & Alex R. Piquero, Community Policing: 

Contemporary Readings (2000). Researchers have described community policing 

as “arguably the most important development in policing in the past quarter 

century.” See Fairness and Effectiveness in Policing, supra, at 85; see also Arlen 

M. Rosenthal, et at., Community Policing: 1997 National Survey Update o f Police

16

http://www.atg.wa.gov/AlliedAgainstMeth/default.aspx


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and Sheriffs ' Departments (April 2001) (noting that 86 percent of law enforcement 

executives find that community policing is a highly effective means of providing 

police services). Because developing a cooperative relationship with the local 

community is a key component of these programs, which depend upon members of 

the public to assist “the police by reporting crimes promptly when they occur and 

cooperating as witnesses,” see Fairness and Effectiveness in Policing, supra, at 89, 

the alienation and marginalization of communities, which results from felon 

disenfranchisement laws, may actually undermine these efforts.

Specifically, the collective experiences of amici, confirmed by social science 

data, suggest that community members are more willing to assist legal authorities 

when they feel that those authorities are delivering outcomes fairly with respect to 

people and groups. See Austin Sarat, Studying American Legal Culture, 11 Law & 

Soc. Rev. 427, 434 (1997); Tom R. Tyler, et al., Social Justice in a Diverse World 

(1997). To the extent that felon disenfranchisement in Washington engenders 

unfair and impermissible racial disparities in voting, minority groups may feel 

alienated from the community and unwilling to assist law enforcement officials, to 

the detriment of community policing programs.

In sum, enforcing Section 2 of the VRA to eradicate racially discriminatory 

disenfranchisement would not interfere with either the traditional methods or the 

innovative strategies that police, prosecutors, and corrections officials employ to

17



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enforce the criminal law and promote public safety. Rather, expanding voting

rights in historically disenfranchised communities would likely facilitate even

stronger and more effective law enforcement activities. Thus, because state law

enforcement interests are not served by Washington’s discriminatory felon

disenfranchisement scheme, this Court should not presume, with respect to Senate

Factor 9, that the State has an adequate policy justification for the practice.

II. BECAUSE ENFORCING SECTION 2 OF THE VRA DOES NOT 
INTERFERE WITH TRADITIONAL STATE LAW ENFORCEMENT 
PREROGATIVES, FEDERALISM CONCERNS ARE NOT 
IMPLICATED.

Amici recognize that the sensitive relationship between federal and state 

criminal jurisdiction may be threatened where the federal government directly 

interferes with or inserts itself into core areas of a state’s law enforcement activity. 

See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (“Under our federal 

system, the States possess primary authority for defining and enforcing the 

criminal law.”). Here, however, those concerns are not implicated because, as 

described above, enforcing Section 2 of the VRA to remedy the discriminatory 

denial of voting rights wrought by felon disenfranchisement would not intrude 

upon Washington’s authority to execute its core law enforcement functions, and 

thus would not upset the delicate balance between federal and state power.

Indeed, as Washington courts have recognized, felon disenfranchisement is 

“a nonpenal exercise of the power to regulate the franchise,” see State v. Schmidt,

18



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23 P.3d 462 (Wash. 2001). Moreover, because the purpose of the specific felon 

disenfranchisement at issue here, RCW § 29A.08.520, “is to designate a reasonable 

ground of eligibility for voting,” Fernandez v. Kiner, 673 P.2d 191, 193 (Wash. 

App. 1983), it is codified in the elections portions of Washington’s civil code, 

wholly separate and apart from the State’s criminal code. Compare with Title 9A 

RCW (criminal code). Thus, applying the VRA to Washington’s felony 

disenfranchisement scheme doe not interfere with an area of traditional state penal 

authority or law enforcement activity.

Significantly, the cases in which the Supreme Court has found that 

federalism principles precluded enforcement of Congressional enactments in areas 

touching upon state criminal matters stand in stark contrast to this matter. In those 

cases, Congress had directly legislated in areas of traditional state criminal law. 

For example, h United States v. Emmons, 410 U.S. 396, 397, 411-12 (1973), the 

Court concluded that the federal Hobbs Act, which made it unlawful to obstruct 

delay, or affect “commerce or the movement of any article or commodity in 

commerce, by robbery or extortion,” could not be used to punish individuals for 

damage caused to utility company property during a union strike. The Court 

declined to conclude that “Congress intended to put the Federal Government in the 

business of policing the orderly conduct of strikes” because doing so would

19



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constitute “an unprecedented incursion into the criminal jurisdiction of the States.” 

Id. at 411.

Similarly, United States v. Lopez, involved a Congressional enactment in an 

area of traditional state criminal law—the possession of a firearm in a local school 

zone. 514 U.S. at 551. In invalidating that federal law under the Commerce 

Clause, the Court reasoned that “[wjhen Congress criminalizes conduct already 

denounced as criminal by the states, ‘it effects a change in the sensitive relation 

between federal and state criminal jurisdiction.’” Id. at 561 n.3 (quoting Emmons, 

410 U.S. at 411-412); see also United States v. Bass, 404 U.S. 336, 349 (1971) 

(noting that the law in question would upset the federal state balance because “the 

broad construction urged by the Government renders traditionally local criminal 

conduct a matter for federal enforcement and would also involve a substantial 

extension of federal police resources”). In contrast to those cases where Congress 

had potentially usurped state law powers by infringing upon core law enforcement 

concerns,14 here, enforcing Section 2 of the VRA would not, in any way, intrude

14 The Courts have also been concerned about federalism in the context of state 
criminal law with respect to Younger Abstention and federal habeas jurisdiction. 
See, e.g., Younger v. Harris, 401 U.S. 37, 43-45 (1971) (holding that federal courts 
may not interfere with ongoing state criminal proceedings in the absence of special 
circumstances); Coleman v. Thompson, 501 U.S. 722, 726 (1991); McCleskey v. 
Zant, 499 U.S. 467, 493 (1991) (“[T]he doctrines of procedural default and abuse 
of the writ are both designed to lessen the injury to a State that results through 
reexamination of a state conviction on a ground that the State did not have the 
opportunity to address at a prior, appropriate time; and both doctrines seek to

2 0



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upon Washington State’s authority to execute its core law enforcement functions, 

as set forth above.

Moreover, by remedying the discriminatory denial of voting rights pursuant 

to the VRA, the federal government acts in an area of unquestionable federal 

concern and pursuant to indisputable federal constitutional authority. See Johnson 

v. Governor o f Flo., 405 F.3d 1214, 1250 (11th Cir. 2005) (Barkett, J., dissenting) 

(rejecting claims that enforcing the VRA poses federalism concerns because the 

“Fourteenth and Fifteenth Amendments altered the constitutional balance between 

the two sovereigns—not the Voting Rights Act, which merely enforces the 

guarantees of those amendments”); see also Hayden v. Pataki, 449 F.3d 305, 358 

(2d Cir. 2006) (Parker, J., dissenting) (reasoning that enforcing the VRA did not 

upset the balance in federal and state power given that a “seismic shift” had 

already taken place with the creation of the Fourteenth and Fifteenth Amendments, 

which “clearly altered the federal-state balance in an attempt to address a truly 

compelling national interest-namely, reducing racial discrimination perpetuated by 

the states”).

vindicate the State’s interest in the finality of its criminal judgments.”). In both 
areas, the inquiry has been whether or not it is appropriate for the federal courts to 
interfere with state criminal proceedings or the finality of state criminal judgments, 
a direct intrusion into the State’s core law enforcement activities. In this case, to 
the contrary, enforcing Section 2 of the VRA does not interfere with law 
enforcement activities and does not deprive the State of its core means of defining 
and enforcing the criminal law.

21



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Because remedying discriminatory vote denial in Washington through 

application of the VRA would neither undermine law enforcement purposes or 

interests, nor hinder effective law enforcement activity, enforcing the VRA in this 

instance would not intrude upon local state concerns and would preserve the 

careful balance between state and federal power. Accordingly, federalism 

concerns are not implicated by this case and the Court should affirm the panel's 

decision, finding compelling evidence of discriminatory vote denial in violation of 

Section 2 of the VRA.

CONCLUSION

For the reasons set forth above, the restoration of voting rights that would 

result from application of the VRA to Washington’s discriminatory 

disenfranchisement scheme is fully consistent with strong and effective state law 

enforcement and this Court should reject the notion that Washington's 

discriminatory felony disenfranchisement scheme is justified by a nontenuous, law 

enforcement justification. Accordingly, amici respectfully submit that this Court 

should affirm the panel’s decision finding that Washington’s felony 

disenfranchisement law violates section 2 of the VRA.

22



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Respectfully submitted,

Dated: June 11, 2010 s/ Lawrence S. Lustberg
Lawrence S. Lustberg 
Jennifer B. Condon 
GIBBONS, P.C.
One Gateway Center 
Newark, NJ 07102-5310 
tel. (973) 596-4489 
fax (973) 639-6353

23



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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(b) because it contains 4,979 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

in 14 point, Times New Roman font.

Dated: June 11, 2010 /s/Lawrence S. Lustberg
Lawrence S. Lustberg 
Counsel for Amici Curiae

24



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CERTIFICATE OF SERVICE

I hereby certify that June 11, 2010, I electronically filed the foregoing Brief 

o f amici curiae the National Black Police Association, the National Latino Officers 

Association, American Probation and Parole Association, and former law- 

enforcement officials, in support of appellants and in support of affirmance with 

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit 

by using the appellate cm/ecf system. Participants in the case who are registered 

cm/ecf users will be Served by the appellate cm/ecf system.

I further certify that some of the participants in the case are not registered

CM/ECF users. 1 have mailed the foregoing documents by federal express to the

following non-CM/ECF participants:

Juan Cartagena 
Community Service Society 
105 East 22nd Street 
New York, NY 10010

I further certify that 1 will comply with 9th Cir. R. 29-2(d) and file 20 paper 
copies of this brief within 3 days of electronic filing.

A'/ Jennifer B. Condon 
Jennifer B. Condon

Counsel for Amici Curiae

25



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Appendix A
Interests of the Amici Curiae

Zachary W. Carter served as United States Attorney for the Eastern 
District of New York between 1993 and 1999.

Veronica Coleman-Davis served as United States Attorney for the Western 
District of Tennessee between 1993 and 2001.

Scott Lassar served as United States Attorney for the Northern District of 
Illinois between 1997 and 2001.

Kate Pflanmer served as United States Attorney for the Western District of 
Washington from 1993 to 2001.

Chase Riveland was Washington’s Secretary of Corrections from 1986 to 
1997 and Executive Director of Colorado’s Department of Corrections from 
1983 until 1986; he currently serves as Special Master in Valdivia v. 
Schwarzenegger, Civ. No. S-94-671 LKK/GGH (E.D. Cal.).

Norm Stamper served as Seattle's Chief of Police from 1994 to 2000 and 
was a San Diego police officer from 1966 until 1994.

American Probation and Parole Association is an international 
association composed of members from the United States, Canada and other 
countries actively involved with probation, parole and community-based 
corrections, in both adult and juvenile sectors.

National Black Police Association, which represents approximately 35,000 
individual members and more than 140 chapters, is a nationwide 
organization of African American Police Associations dedicated to the 
promotion of justice, fairness, and effectiveness of law enforcement.

National Latino Officers Association of America is a fraternal and 
advocacy organization with a membership of 10,000 uniformed and civilian 
employees, predominantly within city and state law-enforcement agencies, 
that is dedicated to creating strong bonds between the Latino community and 
other law-enforcement agencies.



Case: 06-35669 05/17/2010 Page: 1 of 45 ID: 7339585 DktEntry: 90-2

No. 06-35669

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

MUHAMMAD SHABAZZ FARRAKHAN, aka Ernest S. Walker; 
AL-KAREEM SHADEED; MARCUS X. PRICE;

RAMON BARRIENTES; TIMOTHY SCHAAF; CLIFTON BRICENO,
Plaintiffs - Appellants,

CHRISTINE O. GREGOIRE; SAM REED; 
HAROLD W. CLARKE; STATE OF WASHINGTON,

Defendants - Appellees.

On Appeal from the United States District Court 
for the Eastern District of Washington, Spokane 

Honorable Robert H. Whaley, Senior District Judge

BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION 
AND CENTER FOR EQUAL OPPORTUNITY 
IN SUPPORT OF DEFENDANTS-APPELLEES 

AND IN SUPPORT OF AFFIRMANCE

SHARON L. BROWNE 
RALPH W. KASARDA 

Pacific Legal Foundation 
3900 Lennane Drive, Suite 200 
Sacramento, California 95834 
Telephone: (916)419-7111 
Facsimile: (916)419-7747

Counsel for Amici Curiae 
Pacific Legal Foundation and 
Center for Equal Opportunity



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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Amici Curiae Pacific 

Legal Foundation and Center for Equal Opportunity state that they are nonprofit 

organizations, they have no parent companies, and they have not issued shares of 

stock.

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TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT....................................................... j

TABLE OF AUTHORITIES.................................................................................  jv

IDENTITY AND INTEREST OF AMICI CURIAE ............................................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT .................................... 3

ARGUMENT............................................................................................................ 5

I. FELON DISENFRANCHISEMENT LAWS ARE 
DEEPLY ROOTED IN THE NATION’S HISTORY
AND ARE NOT RACIALLY DISCRIMINATORY......................................5

II. THE VOTING RIGHTS ACT DOES NOT APPLY
TO FELON DISENFRANCHISEMENT LAW S........................................ 12

A. Legislative History and Intent Do Not
Support Plaintiffs’ Construction of the Act .......................................... 12

B. The “Clear Statement” Rule Precludes
Plaintiffs'Reading of the S tatu te ...........................................................17

C. Plaintiffs’ Construction of Section 2 Would Exceed
Congress’s Fifteenth Amendment Enforcement Powers ...................... 21

III. SECTION 2’S “RESULTS" TEST CANNOT BE STRETCHED
TO OUTLAW FELON DISENFRANCHISEMENT...................................24

A. Section 2’s “Results” Test Cannot Be Met Here .................................. 24

B. Any Prima Facie Showing of
Adverse “Results” Is Easily Rebutted .................................................. 28

CONCLUSION .....................................................................................................31

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Page

CERTIFICATE OF COMPLIANCE.....................................................................32

CERTIFICATE OF SERVICE .............................................................................34

- iii -



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TABLE OF AUTHORITIES

Page

Cases

Adarand Constructors v. Pena, 515 U.S. 200 (1995)............................................ 1

Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996)................................................  4, 7, 23

Bartlett v. Strickland, 129 S. Ct. 1231 (2009) ................................................... 1-2

Bd. o f Trustees v. Garrett, 531 U.S. 356 (2001)............................................  22-23

Bush v. Vera, 517 U.S. 952 (1996).........................................................................1

Chisom v. Roemer, 501 U.S. 380 (1991).................................................................1

City ofBoerne v. Flores, 521 U.S. 507 (1997)..........................................  4, 22, 24

City o f Rome v. United States, 446 U.S. 156 (1980).............................................. 1

Davis v. Beason, 133 U.S. 333 (1890) ...................................................................9

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988) .........................................................................................  21

Farrakhan v. Locke, No. CS-96-76-RHW,
2000 U.S. Dist. LEXIS 22212 (E.D. Wash. Dec. 1,2000)............  3, 5-6, 12, 31

Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank,
527 U.S. 627(1999) ......................................................................................... 23

Goosbyv. Town Bd., 180 F.3d 476 (2d Cir. 1999).............................................. 12

Gratz v. Bollinger, 539 U.S. 244 (2003)............................................................. 1-2

Green v. Bd. o f Elections, 380 F.2d 445 (2d Cir. 1967)..............................  6-7, 10

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Page

Gregory v. Ashcroft, 501 U.S. 452 (1991) ............................................... 17-19,21

Grutter v. Bollinger, 539 U.S. 306 (2003) ......................................................... 1-2

Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) ......................................  2, 4, 7, 18

Houston Lawyers' Ass 'n v. Attorney Gen., 501 U.S. 419 (1991).................... 1,29

Howard v. Gilmore, No. 99-2285,
2000 U.S. App. LEXIS 2680 (4th Cir. Feb. 23, 2000)...................................... 4

Irbyv. Virginia State Bd. o f Elections, 889 F.2d 1352 (4th Cir. 1989) ..............  27

Johnson v. California, 543 U.S. 499 (2005)...........................................................1

Johnson v. Governor o f Fla., 405 F.3d 1214 (11th Cir. 2005)....................  passim

Jones v. Edgar, 3 F. Supp. 2d 979 (C.D. III. 1998)..............................................  25

Lassiter v. Northampton County Bd. o f Elections, 360 U.S. 45 (1959)..........  9, 20

League o f United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006)..............  2, 18

League o f United Latin Am. Citizens, Council No. 4434 v. Clements,
999 F.2d 831 (5th Cir. 1993)....................................................................... 26, 29

McCleskey v. Kemp, 481 U.S. 279 (1987) ........................................................... 27

Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004)..........................  12, 15, 19, 24

Nevada Dep 7 o f Human Res. v. Hibbs, 538 U.S. 721 (2003) ............................  22

Nipper v. Smith, 39 F.3d 1494 (11th Cir. 1994)............................................  25-26

Nw. Austin Mun. Util. Dist. No. I v. Holder, 129 S. Ct. 2504 (2009) ..............  1-2

Oregon v. Mitchell, 400 U.S. 1 12 (1970) ............................................................  30

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Page

Ortiz v. City o f Philadelphia Office o f the City Comm ’rs
Voter Registration Div., 28 F.3d 306 (3d Cir. 1994) ......................................  26

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007) ....................................................................................... 1-2

Pennsylvania Dep 7 o f Corr. v. Yeskey, 524 U.S. 206 (1998) ...................... 17, 21

Regents ofUniv. o f Cal. v. Bakke, 438 U.S. 265 (1978)........................................ 1

Ricci v. DeStefano, 129 S. Ct. 2658 (2009) ..........................................  1-2, 27-28

Richardson v. Ramirez, 418 U.S. 24 (1974)......................................................  8-9

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) ............................................ 1

Romer v. Evans, 517 U.S. 620 (1996).................................................................. 10

Salas v. Sw. Tex. Junior Coll. Dist., 964 F.2d 1542 (5th Cir. 1992) .................... 27

Shaw v. Hunt, 517 U.S. 899 (1996)...........................................................................1

Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009)..................................  4, 11, 14, 18

Smith v. Salt River Project Agric. Improvement & Power Dist.,
109 F.3d 586 (9th Cir. 1997)............................................................................. 26

State v. Collins, 69 Wash. 268 (1912).................................................................... 7

United States v. Daas, 198 F.3d 1167 (9th Cir. 1999)..........................................  13

United States v. Lopez, 514 U.S. 549 (1995) ....................................................... 19

Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986)................................  4, 25-26, 30

Wygant v. Jackson Bd. o f Educ., 476 U.S. 267 (1986).......................................... 1

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Page

United States Constitution

U.S. Const, amend. XIV ...............................................................................  passim

amend. XIV, § 2 ...................................................................................2-4, 8, 20

amend. X V .......................................................................................  4,7-9,21-22

amend. XVII .......................................................................................................20

U.S. Const, art. I, § 2 .......................................................................................  19-20

State Constitution

Utah Const, art. IV, § 6 ........................................................................................... 11

Federal Statutes

42 U.S.C. § 1971(a)(2)(C).......................................................................................20

§ 1971(a)(3)(B)...................................................................................................20

42 U.S.C. § 1973(a).................................................................................................24

§ 1973b(c)( 1 ) .......................................................................................................20

§ 1973b(c)(2).......................................................................................................20

§ 1973b(c)(3)...............................................................................................13, 20

§ 1973b(e)...........................................................................................................20

§ 1973b(f)(3).......................................................................................................21

§ 1973gg-6(a)(3)(B) ........................................................................................... 15

§ 1973gg-6(g)(l) ................................................................................................. 15

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Page

§ 1973h(a) ...........................................................................................................21

42 U.S.C. § 15483(a)(2)(A)(ii)(I)...........................................................................15

State Statutes

D.C. Code Ann. § 1-206.02(c)(1)...........................................................................11

§ 1-207.52 ........................................................................................................... 11

§ 1-1001.02(7)(A)-(B).........................................................................................11

§ 1-1001.07(k)(l) ............................................................................................... 11

§ 1-1001.07(k)(3)-(4) ......................................................................................... 11

Utah Code Ann. § 20A-2-101.5 .......................................................................... 11

Federal Regulation

Pub. L. 92-220, § 4, 85 Stat. 788 (1971).............................................................. 11

State Regulations

District of Columbia Election Act, § 2(2)(C), 69 Stat. 699 (1955) ....................  11

Wash. Laws of 2009, ch. 325, HB 1517........................................................  15-16

Miscellaneous

111 Cong. Rec. S8366(1965).............................................................................  13

148 Cong. Rec. S797-98 (2002) .............................................................................16

Civic Participation & Rehabilitation Act of 2003,
H.R. 259, 108th Cong. § 3 (2003)....................................................................  16

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Page

Clegg, Roger, et al., The Bullet arid the Ballot?
The Case for Felon Disenfranchisement Statutes,
14 Am. U. J. Gender Soe. Pol’y & L. 1 (2006)................................................. 29

Clegg, Roger, Who Should Vote?,
6 Tex. Rev. L. & Pol. 159 (2001)...............................................................12,28

Count Every Vote Act ol'2005, S. 450, 109th Cong. § 701(d) (2005)................  16

Cox, Tiffany T., Legislative Development:
II. Criminal Law and Procedure, 1998 Utah L. Rev. 716 .............................. 11

Ex-Offenders Voting Rights Act of 2003,
H.R. 1433, 108th Cong. § 4 (2003)................................................................... 16

Ex-Offenders Voting Rights Act of 2005,
H.R. 663, 109th Cong. § 4 (2005)..................................................................... 16

H.R. 3335, the “Democracy Restoration Act”
(testimony of Roger Clegg) (Mar. 16, 2010), 
available at http://judieiary.house.gov/hearings/
pdf/Clegg 100316.pdf (last visited May 12,2010) .......................................... 24

H.R. Rep. No. 439, 89th Cong., 1st Sess. (1965), 
reprinted in 1965 U.S.C.C.A.N. 2437, 2457 .................................................. 14

Keyssar, Alexander, The Right to Vote: The Contested
History o f Democracy in the United States (2000)............................................ 9

Nat'l Conini'n on Fed. Election Reform, To Assure Pride 
and Confidence in the Electoral Process (Aug. 2001), 
available at http://www.reformelections.org/data/
reports/99 full report.pdf (last visited May 12, 2010) .......................... 6-7, 10

S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3 (1965), 
reprinted in 1965 U.S.C.C.A.N. 2508, 2562 ................................................... 13

-  i x  -

http://judieiary.house.gov/hearings/
http://www.reformelections.org/data/


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Page

Task Force on the Constitutional Law & Fed. Election Law,
Part X: The Federal Regulation o f Elections (June 29, 2001), 
in Task Force Reports, To A ssure Pride and 
Confidence in the Electoral Process (Aug. 2001), 
available at http://webl .millercenter.org/commissions/
comm_2001_taskforce.pdf (last visited May 12,2010).................................. 22

- x -

http://webl


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IDENTITY AND INTEREST OF AMICI CURIAE

Pacific Legal Foundation (PLF) was founded 37 years ago and is widely 

recognized as the largest and most experienced nonprofit legal foundation of its kind. 

PLF has extensive litigation experience in the area of group-based racial preferences 

and civil rights. PLF has participated as amicus curiae in nearly every major racial 

discrimination case heard by the United States Supreme Court in the past three 

decades, including Ricci v. DeStefano, 129 S. Ct. 2658 (2009); Parents Involved in 

Cmty. Schs. v. Seattle Sch. Dist. No. I, 551 U.S. 701 (2007); .Johnson v. California, 

543 U.S. 499 (2005); Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 

539 U.S. 306 (2003); AdarandConstructors v. Pena, 515 U.S. 200 (1995); Richmond 

v. J. A. Croson Co., 488 U.S. 469 (1989); Wygant v. Jackson Bd. ofEduc., 476 U.S. 

267 (1986); and Regents ofUniv. o f Cal. v. Bakke, 438 U.S. 265 (1978).

PLF submits this brief because it believes its public policy perspective and 

litigation experience in the area of equal protection and voting rights will provide an 

additional viewpoint with respect to the issues presented. PLF participated as amicus 

curiae in past Voting Rights Act cases such as Nw. Austin Mun. Util. Dist. No. I v. 

Holder, 129 S. Ct. 2504 (2009); Bartlett v. Strickland, 129 S. Ct. 1231 (2009); Bush 

v. Vera, 517 U.S. 952 (1996); Shaw v. Hunt, 517 U.S. 899 (1996); Chisom v. Roemer, 

501 U.S. 380 (1991); Houston Lawyers 'Ass ’n v. Attorney Gen., 501 U.S. 419 (1991); 

and City o f Rome v. United States, 446 U.S. 156 (1980).



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The Center for Equal Opportunity (CEO) is a nonprofit researeh and 

educational organization devoted to issues of race and ethnicity, such as civil rights, 

bilingual education, and immigration and assimilation. CEO supports colorblind 

public policies and seeks to block the expansion of racial preferences and to prevent 

their use in, for instance, employment, education and voting. CEO has participated 

as amicus curiae in numerous cases concerning equal protection and voting rights, 

such as Ricci, 129 S. Ct. 2658; Holder, 129 S. Ct. 2504 (2009); Bartlett, 129 S. Ct. 

1231; Parents Involved, 551 U.S. 701; League o f United Latin Am. Citizens v. Perry, 

548 U.S. 399 (2006); Gratz, 539 U.S. 244; and Grutter, 539 U.S. 306. Most notably, 

CEO participated as amicus curiae in Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006), 

a case that determined Section 2 of the Voting Rights Act cannot be used to invalidate 

a state's felon disenfranchisement law. In addition, officials from CEO have testi 1 ted 

before Congress regarding the Voting Rights Act and on the issue ot felon 

disenfranchisement.

Amici have a substantial interest in ensuring that felons are prevented from 

trampling on the states’ sovereign power to punish criminal offenders, or dissolving 

the states’ primary responsibility for regulating the times, places, and manner of 

conducting elections. They contend that Section 2 of the Voting Rights Act cannot 

be used to challenge state felon disenfranchisement laws, which are expressly 

permitted by the Fourteenth Amendment. U.S. Const, amend. XIV, § 2.

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INTRODUCTION AND SUMMARY OF ARGUMENT

The authority of states to enact felon disenfranchisement laws is specifically 

set forth in the United States Constitution. U.S. Const, amend. XIV, § 2. 

Accordingly, all nine states in the Ninth Circuit and forty-eight states in the nation 

have such laws. But Plaintiffs, who are convicted felons and racial minorities, urge 

this Court to strike down Washington’s felon disenfranchisement law under Section 2 

of the Voting Rights Act (Act), because they claim they are being denied the right to 

vote based on race. The district court rejected Plaintiffs’ vote denial claim, noting 

that Plaintiffs “presented no evidence that their own criminal prosecutions were the 

result of discriminatory animus, or that they were anything but race-neutral.” 

Farrakhan v. Locke, No. CS-96-76-RHW, 2000 U.S. Dist. LEXIS 22212, at * 18 (E.D. 

Wash. Dec. 1, 2000). Plaintiffs argue that a disproportionate number of racial 

minorities are being disenfranchised following felony convictions. Id. at *3. 

However, the court concluded the Act provides no remedy for Plaintiffs, because 

there is no “causal connection between the disenfranchisement provisions” and denial 

of the right to vote based on race. Id. at *4.

The holding of the district court is consistent with the decisions of every other 

circuit that has already considered this issue and held that Section 2 cannot be used 

to challenge state felon disenfranchisement laws. Three circuits, including two en 

bone, specifically rejected Section 2 challenges to felon disenfranchisement.

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Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009); Hayden, 449 F.3d 305 (en banc)', 

Johnson v. Governor o f Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc). Two circuits 

rejected similar claims without directly considering whether felon disenfranchisement 

statutes are immune from attack under Section 2. Howard v. Gilmore, No. 99-2285, 

2000 U.S. App. LEXIS 2680, at *1 (4th Cir. Feb. 23, 2000) (per curiam); Wesley v. 

Collins, 791 F.2d 1255, 1259-61 (6th Cir. 1986) (treating claim as a dilution claim).

Analysis of the text, context, and legislative history of the Act leads to the 

conclusion that the decision of the district court should be affirmed. The Fourteenth 

Amendment expressly permits states to adopt disenfranchisement statutes, which have 

long been accepted in the American legal system. U.S. Const, amend. XIV, § 2, 

Johnson, 405 F.3d at 1217. Many such laws were enacted long before African- 

Americans enjoyed suffrage, and they are not racially discriminatory. Id. at 1218, 

1228 n.28; Baker v. Pataki, 85 F.3d 919, 928 (2d Cir. 1996). Felon 

disenfranchisement laws are beyond the reach of the Act because its legislative 

history clearly shows that the statute was not intended to cover felon 

disenfranchisement laws. Hayden, 449 F.3d at 326. If the Act were construed to 

encompass such laws, the Act would exceed Congress’s enforcement powers of the 

Fifteenth Amendment under the “congruence and proportionality” test from City o f 

Boerne v. Flores, 521 U.S. 507, 519 (1997), because there is a complete absence of 

congressional findings that felon disenfranchisement laws have been used to

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discriminate against minority voters. Johnson, 405 F.3d at 1231. Finally, even apart 

from the legislative history and lack of congressional intent to outlaw felon 

disenfranchisement provisions, Plaintiffs cannot show a violation of Section 2 of the 

Act, because there is no evidenee that each of them is a victim of purposeful 

discrimination in Washington's criminal justice system. Even if Plaintiffs could make 

out a prima facie case, the State’s strong interest in limiting the franchise to citizens 

who follow the law would rebut it.

Reversal of the district court's decision would jeopardize similar laws in all 

remaining eight states in this Court's jurisdiction, and result in the disruption of 

legitimate state electoral practices in the entire Western United States. Amici thus 

urge this Court to affirm the decision of the district court.

ARGUMENT

I

FELON DISENFRANCHISEMENT LAWS ARE 
DEEPLY ROOTED IN THE NATION’S HISTORY 
AND ARE NOT RACIALLY DISCRIMINATORY

In granting Washington's motion for summary judgment, the district court 

correctly held that, even if racial minorities were being disproportionately 

disenfranchised as a result of their felony convictions, such a disparate impact could 

not be remedied by Section 2 of the Act. Farrakhan, 2000 U.S. Dist. LEXIS 22212, 

at *4. Plaintiffs “failed to establish a causal connection between the

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disenfranchisement provision and the prohibited result.” Id. Importantly, the court 

noted that “felon disenfranchisement provision|s are] not inherently or inevitably 

discriminatory.” Id. at 6. The court’s holding is supported by the long history of 

felon disenfranchisement in this country.

As Judge Henry Friendly once stated, someone “who breaks the laws” may 

“fairly have been thought to have abandoned the right to participate” in making them. 

Green v. Bd. o f Elections, 380 F.2d 445, 451 (2d Cir. 1967). The idea “could well 

have rested on Locke’s concept” of the social compact, “so influential at the time.” 

Id. Whatever its philosophical origins, it can hardly be deemed unreasonable for a 

state to decide that perpetrators of serious crimes should not take part in electing the 

legislators who make the laws, the executives who enforce the laws, the prosecutors 

who must try perpetrators for further violations, or the judges who consider their 

cases. Id.

That view has prevailed throughout American history. “Felon 

disenfranchisement laws are unlike other voting qualifications,” as they are “deeply 

rooted in this Nation’s history.” Johnson, 405 F.3d at 1228. “The practice of denying 

the vote to individuals convicted of certain crimes is a very old one that existed under 

English law, in the colonies, and in the earliest suffrage laws of the states.” Nat’l 

Comm'n on Fed. Election Reform, To Assure Pride and Confidence in the Electoral

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Process 45 (Aug. 2001);' see also Hayden, 449 F.3d at 316 (“[Ljaws disenfranchising 

felons were adopted in the American Colonies and the Early American Republic.”). 

The prohibition challenged here traces its roots back to Washington’s Constitution 

of 1866, four years before the Fifteenth Amendment extended the right to vote to 

African-Americans. State v. Collins, 69 Wash. 268,270-71 (1912). “[T]wenty-nine 

states had such provisions when the Fourteenth Amendment was adopted ” in 1868. 

Green, 380 F.2d at 450.

That long history refutes any suggestion that felon disenfranchisement 

provisions like Washington’s are racially motivated. Their origins pre-dating the 

Fourteenth and Fifteenth Amendments show plainly that they affected only white 

men. As the Eleventh Circuit observed, “[a]t that time, the right to vote was not 

extended to African-Americans, and, therefore, they could not have been the targets 

of any [felon | disenfranchisement law.” Johnson, 405 F.3dat 1218. “The prevalence 

of these laws before African-Americans were granted the right to vote indicates that 

states have historically maintained these laws for race-neutral reasons.” Id. at 1228 

n.28. It also “indicates that felon disenfranchisement was not an attempt to evade the 

requirements of the Civil War Amendments or to perpetuate racial discrimination 

forbidden by those amendments.” Baker, 85 F.3d at 928.

1 Available at http://www.reformelections.org/data/reports/99_full report.pdf (last 
visited May 12, 2010).

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http://www.reformelections.org/data/reports/99_full


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The framers of the Civil War Amendments saw nothing racially discriminatory

about felon disenfranchisement. To the contrary, they expressly recognized the

power of the states to prohibit felons from voting. The Fourteenth Amendment

specifically provides that States have the authority to prohibit those convicted of a

crime from voting. Section 2 of the Fourteenth Amendment provides that the right

to vote shall not be abridged, “except for participation in rebellion, or other crime.”

U.S. Const, amend. XIV, § 2. As the Supreme Court held in Richardson v. Ramirez,

418 U.S. 24, 54 (1974), Section 2 is thus “an affirmative sanction” by the

Constitution of “the exclusion of felons from the vote”—even felons who, like the

plaintiffs in Richardson, had finished their sentences. This conclusion

rest[s] on the demonstrably sound proposition that § 1 [the Equal 
Protection Clause], in dealing with voting rights as it does, could not 
have been meant to bar outright a form of disenfranchisement which was 
expressly exempted from the less drastic sanction of reduced 
representation which § 2 imposed for other forms of disenfranchisement.

Id. at 55. Section 2 of the Fourteenth Amendment thus “expressly permits states to

disenfranchise convicted felons.” Johnson, 405 F.3d at 1217 (emphasis added).

Nor did the Reconstruction Congresses see any conflict between felon

disenfranchisement and the Fifteenth Amendment. As the Supreme Court observed

at length in Richardson, Congress, in readmitting states to the Union, consistently

approved state constitutions that excluded felons from voting. Richardson, 418 U.S.

at 48-52. In fact, the Fortieth Congress—the very same Congress that proposed the

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Fifteenth Amendment—approved such constitutions, and the next Congress did so 

both before and after the Fifteenth Amendment was ratified. Id. (citing readmission 

statutes enacted in June, 1868, and January, February, March, and May, 1870); see 

also Johnson, 405 F.3d at 1219 n.7 (noting that following the Civil War, many of the 

new congressionally approved state constitutions contained felon disenfranchisement 

laws).2

Courts have consistently held not only that “the states had both a right to 

disenfranchise [felons and] ex-felons,” but that they had “a compelling interest in 

doing so.” Alexander Keyssar, The Right to Vote: The Contested History o f

Democracy in the United States 162 (2000). In 1890, for example, the Supreme 

Court held that a territorial legislature’s statute that “exclude[d| from the privilege of 

voting . . . those who have been convicted of certain offences” was “not open to any 

constitutional or legal objection.” Davis v. Reason, 133 U.S. 333, 347 (1890). A 

unanimous Warren Court decision recognized that a “criminal record” is one of the 

“factors which a State may take into consideration in determining the qualifications 

of voters.” Lassiter v. Northampton County Bd. o f Elections, 360 U.S. 45, 51 (1959). 

The Court's view has not changed: the holding “that a convicted felon may be denied

2 The Fifteenth Amendment was passed on February 26, 1869, by the Fortieth 
Congress (which began on March 4, 1867, and ended on March 3, 1869), and was 
ratified on February 3, 1870, during the Forty-First Congress.

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the right to vote” remains “unexceptionable.” Romer v. Evans, 517 U.S. 620, 634 

(1996); see also, e.g., Green, 380 F.2d at 451 (noting the Supreme Court “frequently 

recognized” “propriety of excluding felons from the franchise,” and citing cases).

Accordingly, as the National Commission on Federal Election Reform—a 

bipartisan, blue-ribbon panel chaired by former Presidents Ford and 

Carter—observed, the states are free to disenfranchise felons as they see fit: “the 

question of whether felons should lose the right to vote is one that requires a moral 

judgment by the citizens of each state.” Nat’l Comm’n on Fed. Election Reform, 

supra, at 45. The bipartisan commission recommended a judgment similar to 

Washington's—disenfranchisement until felons "have fully served their sentence, 

including any term of probation or parole”—while acknowledging that states were 

free even to disenfranchise felons for life. Id. The commission also concluded that 

“we doubt that Congress has the constitutional power to legislate a federal 

prescription on this subject.” Id.

Today, the overwhelming majority of all states continue to judge felons unfit 

to vote. By 1967, the number of states disenfranchising felons had “risen to 

forty-two,” Green, 380 F.2d at 450, and “[tjoday, all states except two have some 

form of criminal disenfranchisement provision.” Johnson, 405 F.3d at 1228 

(emphasis added). The District of Columbia also has such a provision. The District’s 

current felon disenfranchisement law was enacted by its own locally elected council

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after the introduction of home rule in 1974, and was submitted to—and not objected 

to by—the Congress of the United States.3

Felon disenfranchisement enjoys overwhelming popular support from blue 

states to red states. In 2000, voters in Massachusetts, a blue state, approved a state 

constitutional amendment that disenfranchised incarcerated felons with 60 percent 

voting “yes” and only 34 percent voting “no.” Simmons, 575 F.3d at 27. Earlier in 

1998, the same result occurred in Utah, a red state. There, the state’s voters approved 

a constitutional amendment disenfranchising felons which passed virtually by 

acclamation: 82 percent to 18.4

The Massachusetts and Utah voters’ moral judgment was the same judgment 

that has been demonstrated by voters in virtually every other state throughout 

American history. It was perhaps put best by a Massachusetts state legislative leader, 

who said of that state’s now-abolished practice of allowing incarcerated felons to 

vote:

3 Before granting home rule. Congress enacted felon disenfranchisement in the 
District. See Pub. L. 92-220. § 4. 85 Stat. 788 (1971); District of Columbia Election 
Act, § 2(2)(C), 69 Stat. 699 (1955). Home rule gave the D.C. Council plenary power 
over voter qualifications in the District, D.C. Code Ann. § 1-207.52, subject to 
congressional review, D.C. Code Ann. § 1-206.02(c)(1); the D.C. Council amended 
the election code to disenfranchise felons only during incarceration, D.C. Code Ann. 
§§ 1 -100E02(7)(A)-(B), 1-1001.07(k)(l), 1-1001.07(k)(3)-(4).

4 See Utah Const, art. IV, § 6; Utah Code Ann. § 20A-2-101.5; Tiffany T. Cox, 
Legislative Development: II. Criminal Law and Procedure, 1998 Utah L. Rev. 716, 
716 n.3 (resolution passed 386,957 to 85,080).



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It makes no sense. . . . We incarcerate people and we take away their 
right to run their own lives and leave them with the ability to influence 
how we run our lives?5

But that is precisely the intent that the Plaintiffs would have this Court ascribe 

to Congress here.

II

THE VOTING RIGHTS ACT DOES NOT APPLY 
TO FELON DISENFRANCHISEMENT LAWS

A. Legislative History and Intent Do Not
Support Plaintiffs’ Construction of the Act

Plaintiffs claim that they have been denied the right to vote in violation of the

Act due to race bias in, or the discriminatory effect of, Washington's criminal justice

system. Farrakhan, 2000 U.S. Dist. LEXIS 22212, at *3. Thus, the dispositive

question in this case is whether, in enacting and amending Section 2 of the Act,

Congress intended to prohibit the states from denying the franchise to felons.

The statutory text is notably ambiguous, for ”[u]nfortunately, i t ' is exceedingly

difficult to discern what [Section 2] means.’” Muntaqim v. Coombe, 366 F.3d 102,

116 (2d Cir. 2004) (quoting Goosby v. Town Bd., 180 F.3d 476, 499 (2d Cir. 1999)

(Leval, J., concurring)); accord Johnson, 405 F.3d at 1229 n.30 (“[T]he deep division

among eminent judicial minds on this issue demonstrates that the text of Section 2 is

5 Roger Clegg, Who Should Vote?, 6 Tex. Rev. L. & Pol. 159, 172 (2001) (emphasis 
added; citation omitted).

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unclear.”). Where, as here, “the statute is ambiguous . . . [ , ]  courts may look to its 

legislative history for evidence of congressional intent.” United Slates v. Daas, 198 

F.3d 1167, 1174 (9th Cir. 1999).

The legislative history of the Act unambiguously resolves this case against

Plaintiffs. The only provision of the Act that Congress thought could even implicate

felon disenfranchisement was not Section 2, but Section 4, which prohibits any

requirement of “good moral character” to vote. 42 U.S.C. § 1973b(c)(3). But the

Senate Judiciary Committee's report took pains to note that even Section 4

would not result in the proscription ofthe frequent requirement of States 
and political subdivisions that an applicant for voting or registration for 
voting be free of conviction of a felony.

S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, at 24 (1965), reprinted in 1965 

U.S.C.C.A.N. 2508,2562. On the floor, Senator Tydings repeated that the law would 

not bar states from imposing

a requirement that an applicant for voting or registration for voting be
free of conviction of a felony__ These grounds for disqualification are
objective, easily applied, and do not lend themselves to fraudulent 
manipulation.

I l l  Cong. Rec. S8366 (1965).

The I louse Judiciary Committee report agreed. The Act

does not proscribe a requirement of a State or any political subdivision 
of a State that an applicant for voting or registration for voting be free 
of conviction of a felony.

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H.R. Rep. No. 439, 89th Cong., 1st Sess. 25-26 (1965), reprinted in 1965 

U.S.C.C.A.N. 2437, 2457.

“These are the only references to felon disenfranchisement made in reports to 

the 1965 act.” Johnson, 405 F.3d at 1233. As the Eleventh Circuit noted, these 

reports demonstrate:

• “Congress did not intend Section 2 of the [JAct to cover felon 

disenfranchisement provisions”;

• “tests for literacy or good moral character should be scrutinized, but 

felon disenfranchisement provisions should not”; and

• “legislators intended to exempt the voting restrictions on felons from the 

statute’s coverage.”

Id. at 1233.

The 1982 amendments to the Act did not alter the prior understanding 

regarding the disenfranchisement of felons. Simmons, 575 F.3d at 39. The 

amendments’ history reflects absolutely no intention to outlaw felon 

disenfranchisement. Even though it “details many discriminatory techniques used by 

certain jurisdictions,” “[tjhere is simply no discussion of felon disenfranchisement in 

the legislative history surrounding the 1982 amendments.” Johnson, 405 F.3d 

at 1234 (emphasis added). Indeed, “considering the prevalence of felon 

disenfranchisement. . .  in every region of the country since the Founding, it seems

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unfathomable that Congress would silently amend the [Act| in a way that would 

affect them.” Id. (quoting Muntaqim, 366 F.3d at 123-24).

Overturning felon disenfranchisement remains unfathomable to Congress to 

this very day. The Act’s “one-sided legislative history is buttressed by subsequent 

congressional acts. Since 1982, Congress has enacted laws making it easier for states 

to disenfranchise felons.” Id. at 1234. Thus:

• The National Voter Registration Act o f 1993 not only provides that a 

felony conviction may be the basis for canceling a voter’s registration, 

but requires federal prosecutors to notify state election officials of 

federal felony convictions.6

• The Help America Vote Act o f2002 instructs state election officials to 

purge disenfranchised felons “on a regular basis” from their 

computerized voting lists.7

The enactment of these provisions plainly “suggests that Congress did not 

intend to sweep felon disenfranchisement laws within the scope of the [Act].” 

Johnson, 405 F.3d at 1234 n.39.

Under Washington law, voting rights are restored to felons once they are no 

longer under the authority of the state department of corrections. Wash. Laws of

6 42 U.S.C. §§ 1973gg-6(a)(3)(B)& (g)(1).

7 42 U.S.C. § 15483(a)(2)(A)(ii)(I).

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2009, ch. 325, HB 1517. When the Senate considered what ultimately became the

Help America Vote Act, the Senate voted on a floor amendment that would have

required states to do what Washington already does: allow felons to vote after they

have completed their terms of incarceration, parole, or probation. See 148 Cong. Rec.

S797-98 (2002) (proposed amendment 2879 to S. 565). The proposal would only

have applied to federal elections, and even its Democrat sponsors emphasized they

had no quarrel with denying the franchise to convicts who were still serving their

sentences. In the words of the principal sponsor, Senator Reid:

We have a saying in this country: “If you do the crime, you have to do 
the time.” I agree with that . . . .  [T]he amendment . . .  is narrow in 
scope. It does not extend voting rights to prisoners . . . .  I don’t believe 
in that. It does not extend voting rights to ex-felons on parole.

Id. at S801, S802 (statement of Sen. Reid); see also id. at S804-05 (statement of

co-sponsor, Sen. Specter). Despite being "narrow in scope,” the amendment was

rejected by a large bipartisan majority of 63 nays to only 31 yeas. Id. at S809

(23 Democrats and 40 Republicans voted “nay”).

Since then, bills have been repeatedly introduced in Congress that essentially

copy Senator Reid’s proposal verbatim, but not one has been voted out of committee.8 * &

8 Count Every Vote Act of 2005, S. 450, 109th Cong. § 701(d) (2005); Ex-Offenders 
Voting Rights Act of 2005, H.R. 663, 109th Cong. § 4 (2005); Ex-Offenders Voting 
Rights Act of 2003, H.R. 1433, 108th Cong. § 4 (2003); see also Civic Participation
& Rehabilitation Act of 2003, H.R. 259, 108th Cong. § 3 (2003).

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This legislative record belies the contention that Congress sought to do away with

felon disenfranchisement in any form.

B. The “Clear Statement” Rule Precludes 
Plaintiffs’ Reading of the Statute

An expansive reading of the Act to cover felon disenfranchisement laws would

be contrary to the intent of Congress, and upset the balance between federal and state

powers. But because the text of the Act is unclear on this issue, the “clear statement”

rule of Gregory v. Ashcroft, 501 U.S. 452 (1991) must be applied:

[I]f Congress intends to alter the usual constitutional balance between 
the States and the Federal Government, it must make its intention to do 
so unmistakably clear in the language of the statute.

Id. at 460 (emphasis added; citations and internal quotation marks omitted). If a

statute is intended to “pre-empt[] the historic powers of the States,” Congress must

make its intention clear and manifest. Id. at 461 (emphasis added; citations and

internal quotation marks omitted).

T his rule of construction controls whenever a federal statute touches on 

“traditionally sensitive areas, such as legislation affecting the federal balance.” Id. 

(citations and internal quotation marks omitted). When it applies, the rule requires 

that, absent a clear statement, courts must “interpret a statute to preserve rather than 

destroy the States’ ‘substantial sovereign powers.’” Pennsylvania Dep't o f Corr. v. 

Yeskey, 524 U.S. 206, 209 (1998) (quoting Gregory, 501 U.S. at 461).

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Gregory illustrates how the “clear statement” rule applies. In Gregory, the 

Supreme Court addressed the question of whether the Age Discrimination in 

Employment Act prohibited Missouri from enforcing a mandatory retirement age for 

state judges. The Court held that it did not, applying the clear statement rule. 

According to the Court, the issue implicated “the authority of the people of the States 

to determine the qualifications of their government officials.” Gregory, 501 U.S. 

at 464. Because Congress’s intent on the issue was unclear, the Court refused to 

“give the state-displacing weight of federal law to mere congressional ambiguity.” 

Id. at 464 (citation and internal quotation marks omitted).

As recognized by the Second Circuit, Congress did not clearly specify that 

felon disenfranchisement provisions are covered by the Act, “and the evidence of 

Congressional intent suggests that Congress did not in fact intend to cover such 

provisions.” Hayden, 449 F.3d at 326. The Second Circuit found that the Act is 

“sufficiently ambiguous for the clear statement rule to be applied.” ld.\ see also 

Johnson, 405 F.3d at 1232 (“[ W]e must look for a clear statement from Congress that 

it intended such a constitutionally-questionable result.”). In fact, the Supreme Court 

has never resorted to the plain text alone to give Section 2 meaning, Simmons, 575 

F.3d at 35, but has resorted to legislative history. See Perry, 548 U.S. at 426 

(reviewing senate report on the 1982 amendments to interpret Section 2).

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The test for using the clear statement rule is satisfied here, because prohibiting 

felon disenfranchisement laws would alter the usual constitutional balance between 

the States and the Federal Government. States have the power to determine the 

“qualifications of their government officials.” Gregory, 501 U.S. at 464. Felon 

disenfranchisement involves state authority that is equally important—the authority 

for determining who gets to choose those officials and their qualifications. “If 

defining the qualifications of important government officials lies at the heart of 

representative government, then surely defining who decides what those 

qualifications will be is equally important.” Johnson, 405 F.3d at 1232 n.35. 

Acceptance of Plaintiffs’ claim that Washington’s felon disenfranchisement provision 

violates Section 2 of the Act would cripple fundamental state power to “defm[e] and 

enforcfe] the criminal law,” for which “the States possess primary authority.” 

Muntaqim, 366 F.3d at 121 (quoting United States v. Lopez, 514 U.S. 549, 561 n.3 

(1995)).

These two fundamental lines of state authority—determining state officials and 

their qualifications, and determining who gets to choose them—expressly appear in 

the Constitution’s text. The responsibility for the conduct of elections is a power 

delegated in the Constitution to the States: “[T|he People of the several States, and 

the Electors in each State shall have the Qualifications requisite for Electors of the 

most numerous Branch of the State Legislature.” U.S. Const, art. 1, § 2. States have

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“broad powers to determine the conditions under which the right of suffrage may be 

exercised, absent of course the discrimination which the Constitution condemns.” 

Lassiter, 360 U.S. at 50 (citation omitted). The states have a “wide scope” of power 

to set voter qualifications, such as “[residence requirements, age, |and] previous 

criminal record.'’’ Id. at 51 (emphasis added).

Thus, not only does the Constitution defer to the states to set voter 

qualifications even for federal elections (U.S. Const, art. I, § 2 (House of 

Representatives); U.S. Const, amend. XVII (Senate)), but, as previously noted, the 

Constitution affirmatively sanctions the states’ historic authority to disenfranchise 

people “for participation in rebellion, or other crim ef U.S. Const, amend. XIV, § 2 

(emphasis added). The Constitution clearly confers upon the States the authority to 

decide whether felons should vote.

If Congress intended to disturb the federal-state balance in the area of voter 

qualifications, Congress knew how to make its intent clear. Congress has shown that 

it knows how to be clear when it comes to voting rights—it was clear about literacy 

tests, 42 U.S.C. §§ 1971(a)(2)(C) & (3)(B), 1973b(c)( 1); it was clear about 

educational-attainment requirements, 42 U.S.C. § 1973b(c)(2); it was clear about 

knowledge tests, id.; it was clear about moral character tests, 42 U.S.C. § 1973b(c)(3); 

it was clear about vouching requirements, id.-, it was clear about English-language 

requirements, 42 U.S.C. § 1973b(e); it was clear about English-only elections,

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42 U.S.C. § 1973b(f)(3); and it was clear about poll taxes, 42 U.S.C. § 1973h(a), to 

give just a few examples.

But the text of the Act makes no statement at all about felon

disenfranchisement. Therefore, it cannot be construed “to pre-empt the historic

powers of the States,” Gregory, 501 U.S. at 461 (citations and internal quotation

marks omitted), and “to destroy the States substantial sovereign powers” by

prohibiting felon disenfranchisement, Pennsylvania Dep 7 o f Corr., 524 U.S. at 209

(citations and internal quotation marks omitted).

C. Plaintiffs’ Construction of Section 2 Would Exceed 
Congress’s Fifteenth Amendment Enforcement Powers

Acceptance of Plaintiffs’ Section 2 claim would mean that Congress has the 

authority under the Fifteenth Amendment to prohibit what the Fourteenth Amendment 

specifically allows. Such a construction of Section 2 must be rejected, because it 

would exceed Congress’s powers to enforce the Fifteenth Amendment—or, at a 

minimum, would “present| ] grave constitutional questions” that this Court, through 

a narrower reading, can and must avoid. Johnson, 405 F.3dat 1229 (citing DeBartolo 

Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). 

Indeed, as the bipartisan Ford-Carter Commission concluded, it is “doubtful” that

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Congress has the power to require states to enfranehise even those felons who have 

completed their sentences.9

An interpretation of the Act that allows Congress to prohibit felon 

disenfranchisement laws would mean that Congress has rewritten the Fifteenth 

Amendment in the guise of enforcing it. But “Congress does not enforce a 

constitutional right by changing what the right is.” City o f Boerne, 521 U.S. at 519. 

Congress can only “enact so-called prophylactic legislation” to the extent necessary 

“in order to prevent and deter unconstitutional conduct.” Nevada Dep’t o f Human 

Res. v. Hibbs, 538 U.S. 721, 727-28 (2003) (emphasis added). “There must be a 

congruence and proportionality between the injury to be prevented or remedied and 

the means adopted to that end.” City o f Boerne, 521 U.S. at 520 (emphasis added). 

To meet that test, Congress must

• first, develop a “legislative record” that demonstrates a “history and 

pattern” of unconstitutional state conduct, Bd. o f Trustees v. Garrett, 

531 U.S. 356, 368 (2001); and

9 Task Force on the Constitutional Law & Fed. Election Law, Part X: The Federal 
Regulation o f Elections 41 (June 29,2001), in Task Force Reports, To ASSURE Pride 
and Confidence in the Electoral Process (Aug. 2001), available at 
http://webl .millercenter.org/commissions/comm 2001 taskforce.pdf (last visited 
May 12, 2010).

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• second, “tailor its legislative scheme to remedying or preventing such 

conduct,” Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. 

Bank, 527 U.S. 627, 639 (1999).

Section 2 would plainly fail to meet even the first test were it construed to 

prohibit felon disenfranchisement. For “when Congress enacted the [Act] and its 

subsequent amendments, there was a complete absence of congressional findings that 

felon disenfranchisement laws were used to discriminate against minority voters.” 

Johnson, 405 F.3d at 1231 (emphasis added). “The legislative record . . .  simply fails 

to show that Congress did in fact identify a pattern” of racial discrimination via felon 

disenfranchisement. Garrett, 531 U.S. at 368. To the contrary, the legislative history 

of the Act shows that Congress found “tests for literacy or good moral character 

should be scrutinized, but felon disenfranchisement provisions should not.” Johnson, 

405 F.3d at 1233. "[NJot only has Congress failed ever to make a legislative finding 

that felon disenfranchisement is a pretext . . . for racial discrimination^] it has 

effectively determined that it is not.” Baker, 85 F.3d at 929.

Section 2's congruence and proportionality as a remedy would be destroyed if 

Plaintiffs were allowed to challenge state felon disenfranchisement laws based only 

on disparities in the criminal justice system, and without evidence of intentional 

discrimination. There are no congruence and proportionality between guaranteeing 

people the right to vote irrespective of race and a requiring that criminals be allowed

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to vote, just because there is a specific transitory racial imbalance at this particular 

time among felons. H.R. 3335, the “Democracy Restoration Act”, at 7 (Mar. 16, 

2010) (testimony of Roger Clegg, President and Gen. Counsel, CEO).10

To apply Section 2 to strike down all felon disenfranchisement laws, including 

those enacted and enforced without a discriminatory purpose, would “attempt a 

substantive change in constitutional protections,” CityofBoerne, 521 U.S. at 532— 

something the Constitution simply does not allow.

Ill

SECTION 2’S “RESULTS”
TEST CANNOT BE STRETCHED TO 

OUTLAW FELON DISENFRANCHISEMENT

A. Section 2’s “Results” Test Cannot Be Met Here

Even apart from the legislative history and the clear statement rule, Plaintiffs 

cannot show a violation of Section 2. For “Congress did not wholly abandon its focus 

on purposeful discrimination when it amended the [Act] in 1982,” Muntaqim, 366 

F.3d at 117 (citation omitted), as it continued to bar only “practices that deny or 

abridge the right to vote on account o f race or color."” 42 U.S.C. § 1973(a) (emphasis 

added)."

]{) Available a thttp://judiciary.house.gov/hearings/pdf/Cleggl 00316.pdf(last visited 
May 12, 2010).

11 The arguments in Part II against the applicability of Section 2 of the Voting Rights
(continued...)

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Convicts like Plaintiffs are not disenfranchised because of their race or color. 

Rather, they are disenfranchised "because of their conscious decision to commit a 

criminal act for which they assume the risks of detention and punishment.” Wesley, 

791 F.2d at 1262. Accordingly, because “the causation of the denial of the right to 

vote to felons . . . consists entirely of their conviction, not their race,” Johnson, 

405 F.3d at 1239 (Tjoflat, J., specially concurring), it “does not ‘result’ from the 

state’s qualification of the right to vote on account of race or color and thus . .. does 

not violate the | Act|,” Wesley, 791 F.2d at 1262.

Moreover, “fdjespite its broad language, Section 2 does not prohibit all voting 

restrictions that may have a racially disproportionate effect.” Johnson, 405 F.3d 

at 1228. Proving a violation requires more than a “showing of racially disparate 

effects,” id. at 1235 (Tjoflat, J., specially concurring); the “mere fact that many 

incarcerated felons happen to be black and [Ljatino is insufficient grounds to 

implicate the Fifteenth Amendment or the | ActJ,” even under Section 2, Jones v. 

Edgar, 3 F. Supp. 2d 979,981 (C.D. 111. 1998). Even with the “results” test, Section 2 

still requires proof of discrimination “on account of race or color.” Nipper v. Smith,

11 (...continued)
Act to felon disenfranchisement can also be used in Part 111 to at least limit 
Section 2’s applicability in the ways we contend.

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39 F.3d 1494, 1515 (1 lth Cir. 1994) (quoting League o f United Latin Am. Citizens, 

Council No. 4434 v. Clements, 999 F.2d 831, 850 (5th Cir. 1993) (en banc)).

Statistics showing racial disparities do not alone suffice to establish a Section 2 

violation even when the disparities directly relate to the electoral process. But here, 

the statistics do not directly relate to the electoral process; they relate to arrests, 

convictions, and sentencing. Case law establishes that evidence of statistical 

disparities in an area external to voting, which then result in statistical disparities in 

voting, do not prove a Section 2 violation:

• Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 

586, 595 (9th Cir. 1997), rejected a Section 2 claim based on statistical 

evidence, because ‘"a bare statistical showing of disproportionate impact 

on a racial minority does not satisfy the § 2 ‘results’ inquiry.”

• Wesley, 791 F.2dat 1262, upheld Tennessee’s felon disenfranchisement 

provision against a Section 2 claim that was based on statistical 

disparities in conviction rates.

• Ortiz v. City o f Philadelphia Office o f the City’ Comm 'rs Voter 

Registration Div., 28 F.3d 306,314-15 (3d Cir. 1994), rejected a Section 

2 claim that a statute purging voter registrations of those who did not 

vote for two years had a disparate statistical impact on minorities.

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• Salas v. Sw. Tex. Junior Coll. Dist., 964 F.2d 1542, 1556 (5th Cir. 

1992), rejected a Section 2 claim that an at large voting system harmed 

minorities because of statistical disparities in voter turnout.

• Irby v. Virginia State Bd. o f Elections, 889 F.2d 1352, 1358-59 (4th Cir. 

1989), rejected a Section 2 claim despite a statistical disparity between 

the percentage of blacks in the population and the percentage of blacks 

on the school board.

Plaintiffs ignore these cases, and attempt to prove a denial of voting rights on 

the basis of evidence that is legally insufficient to establish a claim of racial 

discrimination in their conviction. The Supreme Court has held that statistical 

disparities cannot be the basis for a Fourteenth Amendment claim to overturn a 

criminal conviction or sentence—a defendant must show that he or she suffered 

discrimination on the basis of race, and must show that on the basis of facts that 

happened in his or her case. “Because discretion is essential to the criminal justice 

process,” statistical evidence “is clearly insufficient to support any inference that any 

of the decisionmakers in [a particular] ease acted with discriminatory purpose.” 

McCleskey v. Kemp, 481 U.S. 279, 297 (1987); see also Ricci, 129 S. Ct. at 2681 

(reliance on threshold showing of a raw statistical disparity in test results is not strong 

evidence of disparate impact). In other words, to assert the right to vote, convicted 

felons would need to invoke the very same racial statistics that they cannot invoke to

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overturn their convietions. It is extremely unlikely that the Ninety-Seventh Congress

and President Ronald Reagan intended such a result.

B. Any Prima Facie Showing of
Adverse “Results” Is Easily Rebutted

Even assuming the 1982 amendments to the Act established some form of a 

disparate impact standard, states could rebut any prima facie case of disproportional 

impact because of their strong and legitimate interests in maintaining these electoral 

laws. See, e.g., Clegg, supra, at 173 (discussing the lack of constitutional or Voting 

Rights Act violations in felon disenfranchisement provisions). Any disparate-impact 

lawsuit must afford the defendant an opportunity to show that the challenged practice, 

even if it has a disparate impact, is justified. In an employment case, for example, the 

defendant has always been allowed to defend challenged practices based upon 

"business necessity,” and the same must be true in voting eases. Ricci, 129 S. Ct. 

at 2673. Prohibiting children or noncitizens from voting can have a disparate impact 

on a racial or ethnic group, if that group contains younger age cohorts or a 

disproportionate number of recent immigrants, but surely states may defend this 

“disenfranchisement” by pointing to legitimate justifications.

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States have substantial reasons to limit the right to vote to persons who meet 

certain minimum, objective standards of trustworthiness, loyalty, and responsibility; 

accordingly, they may and do exclude from the enterprise of self-government 

children, noncitizens, the mentally incompetent, and those who have been convicted 

of serious crimes against their fellow citizens. See Roger Clegg, et al., The Bullet and 

the Ballot? The Case for Felon Disenfranchisement Statutes, 14 Am. U. J. Gender 

Soc. Pol’y & L. 1, 22-25 (2006) (discussing policy reasons for felon 

disenfranchisement). As discussed in Part 1, nearly all states have come to this 

conclusion, that those not willing to follow the law cannot claim a right to make it. 

The Supreme Court held that “the State’s interest in maintaining an electoral 

system . . .  is a legitimate factor to be considered by courts among the 'totality of 

circumstances’ in determining whether a [Section] 2 violation [of the 1965 Act] has 

occurred.” Houston Lawyers’ Ass’n, 501 U.S.at426. Thus, the Fifth Circuit rejected 

a challenge to Texas’s county-wide election system for its district court 

judges—notwithstanding the alleged disproportionate impact on racial minority 

candidates—on the grounds that the state had a “substantial interest” in linking 

jurisdiction and electoral base, and thereby promoting “the fact and appearance of 

judicial fairness.” Clements, 999 F.2d at 868-69 (en banc).

States have an equally substantial interest in preventing felons from voting and 

potentially affecting elections. Thus, the Sixth Circuit held that the state’s “legitimate

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and compelling interest” in disenfranchising felons outweighed any supposed racial 

impact. See Wesley, 791 F.2d at 1260-61 (felon disenfranchisement law viewed in 

context o f‘‘totality of circumstances,” does not violate the Act). Indeed, the Framers 

of the Reconstruction Amendments found state authority to disenfranchise felons to 

he of such importance that they expressly permitted it in the text of the Fourteenth 

Amendment. See Johnson, 405 F.3d at 1232 (analyzing the constitutional 

implications ol applying the Act to state felon disenfranchisement provisions). And 

as the Supreme Court put it, L‘[n]o function is more essential to the separate and 

independent existence of the States and their governments than the power to 

determine within the limits of the Constitution the qualifications of their own voters 

for state, county and municipal offices.” See Oregon v. Mitchell, 400 U.S. 112, 125 

(1970) (emphasis added) (discussing the constitutional objective of preserving States’ 

powers and governing autonomy).

Washington’s legitimate and compelling interest in disenfranchising felons 

outweighs Plaintiffs’ statistical showing of disparities in that State’s criminal justice

system.

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CONCLUSION

For the reasons stated above, Amici respectfully request that this Court affirm 

the district court's decision in Farrakhan v. Locke, No. CS-96-76-RF1W, 2000 U.S. 

Dist. LEXIS 22212 (E.D. Wash. Dec. 1, 2000).

DATED: May 17,2010.

Respectfully submitted,

SHARON L. BROWNE 
RALPH W. KASARDA

By_______s/ Ralph W. Kasarda
RALPH W. KASARDA

Counsel for Amici Curiae 
Pacific Legal Foundation and 
Center for Equal Opportunity

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FORM 8. CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R.
APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR CASE 
NUMBER 06-35669

Form Must Be Signed By Attorney or Unrepresented Litigant and Attached to
the Back of Each Copy of the Brief

I certify that: (check appropriate option(s))

__1. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32.1, the
attached opening/answering/reply/cross-appeal brief is

□  Proportionately spaced, has a typeface of 14 points or more and contains
______words (opening, answering, and the second and third briefs filed
in cross-appeals must not exceed 14,000 words; reply briefs must not 
exceed 7,000 words),

or is

□  Monospaced, has 10.5 or fewer characters per inch and contains______
words o r______lines of text (opening, answering, and the second and
third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 
lines of text; reply briefs must not exceed 7,000 words or 650 lines of 
text).

2. The attached brief is not subject to the type-volume limitations of Fed. R. App.
P. 32(a)(7)(B) because

□  This brief complies with Fed. R. App. P. 32(a)(l)-(7) and is a principal 
brief of no more than 30 pages or a reply brief of no more than 15 pages;

□  T his brief complies with a page or size-volume limitation established by
separate court order dated___________and is

□  Proportionally spaced, has a typeface of 14 points or more and 
contains______words,

or is

□  Monospaced, has 10.5 or fewer characters per inch and contains 
______pages o r_______ words o r_______ lines of text.

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3. Briefs in Capital Cases

□ This brief is being filed in a capital case pursuant to the type-volume 
limitations set forth at Circuit Rule 32-4 and is

□  Proportionately spaced, has a typeface of 14 points or more and
contains______words (opening, answering, and the second and
third briefs filed in cross-appeals must not exceed 21,000 words; 
reply briefs must not exceed 9,800 words)

or is

□ Monospaced, has 10.5 or fewer characters per inch and contains
______words o r______ lines of text (opening, answering, and the
second and third briefs filed in cross-appeals must not exceed 75 
pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 
910 lines of text).

Amicus Briefs

Pursuant to Fed. R. App. P. 29(d) and 9th Cir. R. 32-1, the attached 
amicus brief is proportionally spaced, has a typeface of 14 points or more 
and contains 7,000 words or less,

or is

□ Monospaced, has 10.5 or fewer characters per inch and contains not more 
than either 7,000 words or 650 lines of text,

or is

□  Not subject to the type-volume limitations because it is an amicus brief of 
no more than 15 pages and complies with Fed. R. App. P. 32(a)(l )(5).

DATED: May 17, 2010. s/ Ralph W. Kasarda 
RALPH W. KASARDA

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CERTIFICATE OF SERVICE

I hereby certify that on May 17,2010,1 electronically filed the foregoing with 

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by 

using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the 

appellate CM/ECF system.

1 further certify that some of the participants in the case are not registered

CM/ECF users. 1 have mailed the foregoing document by First-Class Mail, postage

prepaid, to the following non-CM/ECF participant:

JUAN CARTAGENA 
Community Service Society 
105 East 22nd Street 
New York, NY 10010

s/ Ralph W. Kasarda 
RAEPH W. KASARDA

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